i  ; 


! 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


Citi3en's  Xibrarg  ot  Economics,  politics 
an&  Sociology— Hew  Series 

EDITED  BY  RICHARD  T.  ELY,  PH.D.,  LL.D. 
Professor  of  Economics  in  the  University  of  Wisconsin 


THE  LAW  OF  CITY 
PLANNING  AND  ZONING 


Cbc  attt3en'0  llbrarp  of  Economics, 
politics  and  Sociology 

KBIT  CD  BY 

RICHARD   T.    ELY,    Ph.D..    LL.D. 
ProfeMW  of  Economic*  in  the  University  of  Wisconsin. 


Hew  Series 

THE    PROGRESSIVE    MOVEMENT.     Bv    BENJAMIN    P.    DE- 

WITT.  M.A..  LL.B. 
THE   SOCIAL   PROBLEM.     Bv    CHABLES   A.    ELLWOOD.    PH.D. 

New  and  greatly   enlarged   edition. 

THE  WEALTH  AND  INCOME  OF  THE  PEOPLE  OF  THE 
UNITED  STATES.  BY  Wiu.row>  I.  KING.  PH.D. 

THE  FOUNDATIONS  OF  NATIONAL  PROSPERITY.  BY 
RICBABO  T.  ELY,  PH.D..  LL.D.;  Rxtrn  H.  Hxu.  PH.D.; 
CRABLU  K,  LBITM,  PH.D.;  THOMAS  NIXON  CABVEB.  PH.D.. 
LL.D. 

THE  WORLD  WAR  AND  LEADERSHIP  IN  A  DEMOC- 
RACY. BY  RICHABD  T.  ELY.  PH.D..  LL.D. 

BUDGET  MAKING  IN  A  DEMOCRACY.     BY  MAJOB  EDWABD 

A.     FlTZFATmiCK. 

THE  VISION  FOR  WHICH  WE  FOUGHT.  BY  A.  M. 
SIMONS,  B.L. 

CITY  MANAGER  IN  DAYTON.  BY  CHESTEB  E.  RIGHTOB. 
B.A. 

THE  MARKETING  OF  WHOLE  MILK.  BY  HENBY  E. 
EBOMAN.  I'H.D. 

POPULAR  GOVERNMENT.     BY  ABNOLO  BENNETT  HALL,  B.A.. 

J.D- 
THE    NON-PARTISAN    LEAGUE.     BY    ANDBEW    A.    BBUCE. 

A.B..  LL.B. 

THE  LAW  OF  CITY  PLANNING  AND  ZONING.  Bv  FBANK 
BAC«L»  WILLIAMS.  A.M..  LL.B. 


THE  LAW   OF  CITY 
PLANNING   AND   ZONING 


BY 


FRANK  BACKUS  \yiLLIAMS,  A.M.,  LL.B. 

Of  the  New  York  Bar 


got* 

IQ22 

THE  MACMILLAN  COMPANY 

All  rights  reserved 


NUNTED  IN   TUI   UiilTID  STATED  OF   AMUUCA 


u> 

1910. 


CorrviGRT,  1912, 
By  THE  MACMILLAN  COMPANY. 


Set  up  and  printed.  Published  NoTember, 


of 

J    J    Little  *  Ivr.  C 
If*w  York,  f 


INTRODUCTION 

BY  AUBREY  TEALDI 
Professor  of  Landscape  Design,  University  of  Michigan. 

City  Planning  in  its  broad  modern  sense  is  a  very  recent 
development  in  America.  Less  than  three  decades  have  passed 
since  the  first  conscious  effort  was  made  to  prepare  a  compre- 
hensive plan  for  the  improvement,  embellishment  and  future 
development  of  a  large  city.  However,  only  within  the  present 
century  has  the  movement  become  at  all  general.  During  this 
time  many  cities,  both  large  and  small,  in  every  section  of  the 
country  have  grappled  with  the  problem  of  their  economic, 
hygienic  and  aesthetic  development. 

At  first  the  movement  in  civic  improvement  was  mainly 
confined  to  the  idea  of  the  City  Beautiful  so  that  the  plans 
and  reports  dealt  mostly  with  parks,  civic  centers  and  other 
specialized  features  that  made  their  appeal  through  that  idea, 
each  one  excellent  in  its  way,  but  fulfilling  only  a  narrow 
purpose  too  often  totally  unrelated  to  the  city  as  a  whole.  It 
was  not  till  later  that  the  less  showy  but  fundamental  questions 
such  as  transportation,  water  supply,  sewerage  systems,  etc., 
were  taken  into  consideration  as  essential  parts  of  civic 
improvement.  Even  then  the  reports  too  often  illustrated  and 
placed  great  emphasis  upon  city  embellishment  and  improve- 
ment in  other  countries  without  making  due  allowance  for  the 
local  conditions  and  specially  for  the  legal  status  of  city 
planning  in  those  countries. 

In  general  it  may  be  said  that  in  the  earlier  planning  reports 
the  legal  side  of  city  planning  was  given  little  or  no  considera- 
tion. The  result  was  a  failure,  either  wholly  or  in  part,  to 
accomplish  their  purpose.  This  failure  was  easily  traceable 
to  the  lack  of  legal  foundation  for  carrying  out  the  plans 
recommended  in  the  reports.  The  need  of  a  sound  legal  basis 


74O150 


rf  INTRODUCTION 

for  city  planning  in  the  United  States  soon  became  apparent. 
In  fact  it  did  not  seem  an  exaggeration  to  say  that  the  most 
important  profession  in  connection  with  city  planning  was  the 
law,  and  that  the  lawyer,  at  least  for  the  time  being,  was  the 
one  most  fundamentally  concerned  with  its  progress.  While  it 
is  evident  that  city  planning  cannot  be  a  one-man's  concern,  and 
that  for  the  best  accomplishment  it  must  be  the  result  of  the 
united  efforts  of  the  lawyer,  the  engineer,  the  landscape 
designer,  the  architect,  the  economist  and  others,  it  is  still  true 
today  that  in  most  cases  without  the  efforts  of  the  lawyer  the 
others  would  be  helpless.  And  it  will  continue  to  be  true  until 
such  time  as  that  sound  legal  basis  has  become  an  accomplished 
fact. 

City  planning  as  a  science  and  as  an  art  has  been  taught 
for  some  time  at  more  than  one  American  University,  but  gen- 
erally until  quite  recently  the  legal  side  of  the  question  has 
not  been  given  the  prominence  that  is  essential.  It  was  this 
consideration  that  in  1915  suggested  a  course  of  lectures  on 
city  planning  law  in  connection  with  the  instruction  in  city 
planning  at  the  University  of  Michigan,  where  one  of  the  aims 
was  to  spread  a  knowledge  of  the  elements  of  the  subject  more 
widely  rather  than  confine  it  to  the  students  of  any  one  depart- 
ment. 

With  this  end  in  view  Mr.  Frank  B.  Williams  of  the  New 
York  Bar  was  invited  to  deliver  a  series  of  lectures  at  this 
institution.  Mr.  Williams  was  particularly  well  qualified  to 
act  as  leader  in  this  pioneering  movement.  As  a  student  of 
city  planning  law  his  experience  had  been  wide.  He  had 
founded  and  was  Chairman  of  the  City  Planning  Committee 
of  the  City  Club  of  New  York,  he  was  director  of  the 
Municipal  Art  Society  of  New  York,  Member  of  the  General 
Committee  of  the  National  Conference  on  City  Planning,  had 
been  sent  abroad  by  the  City  of  New  York  in  1913,  and  again 
in  1914,  to  investigate  and  report  on  building  regulation  and 
zoning,  and  had  drafted  the  New  York  City  Planning  Law  of 
1913.  Mr.  Williams  accepted  the  invitation  and  was  ap- 
pointed non-resident  Lecturer  in  City  Planning  Law  in  the 
Department  of  Landscape  Design ;  the  lectures  were  delivered 


INTRODUCTION  vii 

in  the  spring  of  1916.  These  lectures  were  the  first  attempt 
to  present  the  subject  of  City  Planning  Law  as  an  entity. 
Their  immediate  result  was  a  much  clearer  understanding 
among  the  different  colleges  and  departments  of  the  University 
of  the  close  interrelation  of  all  the  professions  concerned  in 
the  development  of  urban  and  rural  planning.  The  fact  that 
Mr.  Williams  was  invited  to  repeat  his  course  of  lectures  at 
a  number  of  other  Universities  was  proof  that  the  interest  in 
the  subject  was  by  no  means  confined  to  this  institution. 

In  introducing  his  subject  Mr.  Williams  said:  "A  free 
country  is  of  necessity  a  country  regulated  by  law.  Rules,  to 
do  justice,  must  be  not  only  inherently  equitable  but  also  cer- 
tain, the  same  for  all,  known  in  advance  to  all  who  desire 
knowledge  of  them.  A  government  conducted  under  known 
mandates  is  a  government  of  law ;  any  other  administration 
may  be  benevolent  but  it  cannot  be  just  or  free.  Nor  can  the 
great  nations  of  today  be  either  intelligent  or  progressive  in 
the  conduct  of  their  affairs  unless  directed  in  accordance  with 
laws  founded  upon  experience.  An  essential  of  justice  and 
wisdom,  however,  is  adaptation  to  things  as  they  are, — a  fact 
which  introduces  into  the  law  an  element  of  change  without 
which  progress  is  impossible. 

"In  free  countries  like  ours  one  of  the  most  important  facts 
in  any  public  undertaking  is  the  existing  law  with  relation  to 
it.  No  public  enterprise  in  the  United  States  can  be  accom- 
plished or  even  actually  begun,  except  by  methods  sanctioned  by 
the  law  as  it  exists  at  the  time  in  the  jurisdiction  where  that 
enterprise  is  proposed.  A  failure  to  know  and  appreciate  this 
fact,  especially  in  new  fields  of  endeavor  like  City  Planning,  is 
one  of  the  commonest  causes  of  failure  of  our  officials  and 
public-spirited  citizens  to  obtain  practical  results.  Scarcely 
less  of  an  obstacle  to  ultimate  success  is  the  failure  to  appreci- 
ate the  possibility  of  changing  the  existing  law  for  the  better. 
All  too  often  the  so-called  practical  man  in  a  given  city  or 
state  seems  to  regard  the  law  as  it  is  in  that  jurisdiction  at  the 
time  as  a  fixed  fact,  and  its  inadequacy  as  an  insurmountable 
barrier  to  the  enterprise  he  wishes  to  undertake  for  the  com- 
mon good.  To  dispel  this  illusion,  a  knowledge  of  the  law 


Tin  INTRODUCTION 

and  practice  with  relation  to  similar  undertakings  elsewhere 
in  sufficient  accuracy  of  detail  to  ensure  constructive  change 
based  upon  approved  modern  practice,  is  necessary. 

"It  is  as  an  aid  to  the  citizen  and  the  administrator  who 
sees  that  to  planned  achievement  in  public  enterprises  a  com- 
prehensive, accurate  knowledge  of  planning  law  is  essential, 
that  these  lectures  have  been  prepared." 

The  lectures  form  the  nucleus  of  the  present  book,  in  which 
the  progress  of  the  past  six  years  has  been  recorded  and  the 
subject  has  been  brought  up  to  date.1  Wherever  City  Planning 
is  practised  or  studied  this  work  should  be  an  indispensable 
reference  and  guide  both  for  the  professional  and  for  the  lay- 
man, and  as  such  it  should  be  a  powerful  influence  in  the  neces- 
sary widespread  education  in  all  matters  pertaining  to  civic 
improvement. 

City  Planning  is  a  vital  question ;  there  is  no  human 
endeavor  that  is  not  intimately  affected  by  it.  Its  success  in 
the  United  States,  more  than  upon  any  other  factor,  depends 
upon  the  intelligent  development  of  public  opinion.  It  is  evi- 
dently more  and  more  necessary  to  educate  not  only  those  who 
are  directly  concerned  with  the  work,  but  the  legislative  bodies 
who  can  do  so  much  to  forward  or  retard  its  progress,  and 
above  all  the  American  citizen  who  is  in  the  end  the  controller 
of  his  own  destinies. 

AUBREY  TEALDI 

rsity  of  Michigan. 
12th  January,   1922. 

'As  evidence  of  this  prepress  may  be  mentioned  Mr.  Willinms's 
Report  on  Legal  Methods  of  Carrying  Out  the  Changes  Proposed  in  the 
City  Plan  for  BriHn.-f.it.  which  accompanies  Mr.  John  Xnh-n\  Utport 
of  1916,  and  Akron  and  Its  Planning  Law  also  by  Mr.  Williams  in  con- 
nection with  Mr.  Nolcn's  Report  of  1919  for  that  city. 


EDITORIAL  PREFACE 

BY  RICHARD  T.  ELY 

The  purpose  of  this  editorial  preface  is  not  to  praise  the 
present  work  by  Mr.  Frank  B.  Williams.  If,  as  I  believe, 
it  is  pace-setting  and  path-breaking,  it  needs  no  words  of  mine 
to  assign  it  its  proper  place.  "Good  wine  needs  no  bush."  My 
purpose  is  rather  to  explain  the  position  that  this  book  occu- 
pies with  respect  to  related  books  also  published,  or  to  be  pub- 
lished, under  the  auspices  of  the  Institute  for  Research  in 
Land  Economics. 

As  the  idea  of  Land  Economics  is  a  new  one,  the  very 
phrase  itself  having  come  into  use  only  within  a  few  years,  I 
venture  to  give  definitions  of  Land  Economics  and  Land 
Policies,  with  a  few  words  of  explanation : — 

Land  Economics  is  that  division  of  economics,  theoretical  and 
applied,  which  is  concerned  with  land  as  an  economic  concept  and 
with  the  economic  relations  which  grow  out  of  land  as  property. 

As  science,  land  economics  seeks  the  truth  for  its  own  sake.  It 
aims  to  understand  present  facts  pertaining  to  land  ownership  in  all 
their  human  relationships,  to  explain  their  development  in  the  past, 
and  to  discover  present  tendencies  of  growth.  As  an  art,  it  aims  to 
frame  constructive  land  policies  for  particular  places  and  times. 

A  land  policy  takes  as  a  starting  point  the  existing  situation  with 
respect  to  the  land,  land  as  here  used  being  equivalent  to  all  the 
natural  resources  of  the  country.  It  examines  the  processes  of  evolu- 
tion by  which  the  existing  situation  has  been  reached  and  proceeds 
to  develop  a  conscious  program  of  social  control  with  respect  to  the 
acquisition,  ownership,  conservation  and  uses  of  the  land  of  the 
country  and  also  with  respect  to  the  human  relations  arising  out  of 
use  and  ownership. 

Books  have  been  published  on  many  of  the  topics  which 
fall  within  the  scope  of  Land  Economics,  but  they  have  ap- 
peared to  lack  close  relationship  with  one  another.  This  con- 
cept of  Land  Economics  places  these  works  in  their  proper 


x  EDITORIAL  PREFACE 

relations  to  each  other  and  gives  them  a  unity  which,  it  is 
believed,  will  be  helpful  scientifically  and  practically. 

It  will  give  a  still  clearer  idea  of  the  field  if  I  mention  the 
books  already  published  by  The  Macmillan  Company  and  also 
others  for  which  plans  have  been  made,  which  belong  to  this 
general  field.  The  list  of  those  already  published  is  as  follows : 

Agricultural  Economics — H.  C.  Taylor 

Marketing  of  Farm  Products — Theodore  Macklin 

The  Marketing  of  Whole  Milk— H.  E.  Erdman 

The  Law  of  City  Planning  and  Zoning — Frank  B.  Williams 

The  list  of  those  planned  is  as  follows,  the  names  of  authors 
being  omitted  where  definite  arrangements  have  not  as  yet 
been  completed: 

Economics  of  Forest  Land — Henry  S.  Graves 

Outlines  of  Land  Economics — Richard  T.  Ely 

The  Taxation  of  Land — Richard  T.  Ely 

Economics  of  Marketing 

Economics  of  Mineral  Land 

Irrigation   Institutions — Elwood  Mead 

Rural  Sociology — G.  J.  Galpin 

Land  Utilization 

Range  and  Ranch  Land 

History  of  Federal  Land  Policies — B.  H.  Hibbard 

Land  Valuation 

Urban  Land  Policies— Richard  T.  Ely  and  M.  G.  Glaeser 

Introduction  to  Agricultural  Economics — L.  C.  Gray 

Economics  of  Water  Resources 

The  Ownership  and  Tenancy  of  Agricultural  Land — B.  H.  Hib- 
bard and  G.  S.  Wehrwein 

The  Marketing  of  Manufactured  Products 

The  Single  Tax — F.  B.  Carver 

The  Real  Estate  Business  as  a  Profession— R.  T.  Ely  and  asso- 
ciate* 

Land  and  Credit 

Farm  Organization 

Agricultural  Cooperation 

Farm  Bookkeeping 

Special  Assessments 

Land  Problems  of  Planning 

Frontier  Finance  in  the  I'nitcd  States 

Land  Values  in  the  Cotton  States 

Land  Values  in  the  Grain  States 


EDITORIAL  PREFACE  xi 

On  reading  this  list  it  will  be  observed  that  the  books  in- 
cluded are  all  economic  in  character  and  that  they  all  relate 
to  the  land.  The  two  works  on  Agricultural  Economics  deal 
with  the  economic  aspects  of  agriculture  and  are  thus  distin- 
guished from  books  on  technical  agriculture.  The  same  holds 
true  with  regard  to  the  book  on  the  Economics  of  Forest  Land. 
The  unity  is  found  in  the  idea  of  property  in  land; 

It  is  hoped  that  the  present  work  will  very  greatly  broaden 
out  the  interest  in  the  subjects  which  fall  within  our  field. 
Students  of  the  economics  of  land  problems  have  too  generally 
failed  to  appreciate  the  fact  that  land  planning,  both  urban 
and  agricultural,  is  absolutely  essential  to  their  solution.  On 
the  other  hand,  city  planners  have  too  generally  failed  to 
appreciate  that  fundamentally  their  work  must  be  based  upon 
economics.  Land  Economics,  then,  as  a  concept  opens  up  a 
large  practical  and  scientific  field. 

There  is  a  great  need  for  investigation  in  Land  Economics. 
We  are  face  to  face  with  the  gravest  economic  problems  aris- 
ing out  of  landed  property — problems  that  lie  at  the  very 
foundation  of  our  economic  life;  and  when  we  turn  to  economic 
treatises  we  find  little  to  help  us  in  their  solution. 

Thoughtful  men  of  affairs  must  realize  the  significance 
of  landed  property  and  all  the  arrangements  that  are  connected 
with  it  as  soon  as  these  facts  are  called  seriously  to  their  at- 
tention. Some  of  them  already  show  an  appreciation  of  what 
land  questions  mean  for  the  future  of  civilization.  Especially 
significant  is  the  following  quotation  from  the  late  James  J. 
Hill,  whose  greatness  and  experience  in  developing  a  vast 
inland  empire  entitle  his  words  to  careful  consideration : 
"Land  without  population  is  a  wilderness  and  population  with- 
out land  is  a  mob.  The  United  States  has  many  social,  po- 
litical, and  economic  questions — some  old,  some  new — to  settle 
in  the  near  future;  but  none  so  fundamental  as  the  true  rela- 
tion of  the  land  to  the  national  life." 

This  relationship  of  the  land  to  the  national  life  is  a  ques- 
tion of  property  when  we  reach  its  heart,  and  all  investigations 
of  land  problems  which  do  not  find  their  center  in  the  institu- 
tion of  property  must  be  superficial  and  unsatisfactory,  leading 
to  no  permanent  solutions. 


xii  EDITORIAL  PREFACE 

The  place  and  significance  of  the  present  work  will  be  made 
more  clear  by  some  further  information  about  the  Institute  for 
Research  in  Land  Economics,  in  which  the  need  for  investiga- 
tion is  emphasized. 

The  Institute  for  Research  in  Land  Economics  was 
founded  in  October,  1920.  It  has  a  staff  of  resident  research 
workers  ami  has  the  cooperation  of  a  number  of  professors  in 
universities  and  agricultural  colleges,  and  members  of  federal 
and  state  departments  of  agriculture.  A  group  of  mature  and 
experienced  graduate  students  have  joined  in  its  studies.  The 
Institute  has  begun  a  number  of  investigations,  and  will,  as 
it  expands,  take  up  others  for  which  the  need  is  great. 

As  a  motto  the  Institute  has  taken  the  following  words 
written  by  Professor  Frank  A.  Fetter : 

My  own  conviction  has  long  been  that  the  land  question  far 
transcends  any  restricted  field  of  economics  and  that  it  is  funda- 
mental to  national  survival  and  national  welfare.  It  is  truly  a  prob- 
lem calling  for  statesmanship  of  the  broadest  type. 

The  character  of  the  Institute  is  further  indicated  by  the 
Board  of  Trustees,  which  consists  of  the  following  gentlemen  : 

Justice  M.  B.  Rosenberry  (Supreme  Court  of  Wisconsin),  President 
of  the  Board  of  Trustees 

Richard  T.  Kly  (Professor  of  Economics,  University  of  Wisconsin), 
Director  of  Research 

John  H.  Finley  (late  Commissioner  of  Education  of  the  State  of 
New  York  and  President  of  the  University  of  the  State  of  New 
York.  Now  of  the  editorial  department  of  the  New  York  Times.) 

Colonel  Henry  S.  Graves  (Ex-Chief  of  the  United  States  Forest 
Service) 

Henry  ('.  Taylor  (Chief,  Bureau  of  Markets,  United  States  Depart- 
ment of  Agriculture) 

W.  S.  Kies  t  Aldred  and  Company,  New  York  City) 

Albert  Shaw  (Editor,  Rn-iew  of  Rwiews) 

My,  it  may  be  said  that  the  Institute  for  Research  in 
Land  Economics  has  no  private  aims.  All  the  funds  which 
are  received  are  devoted  to  its  work  just  as  in  the  case  of  an 
endowed  university. 

RK HARD  T.  KLY, 

'  ctor.  Institute  for  Research  in  Land  Economics. 


ACKNOWLEDGMENTS 

The  author  takes  this  occasion  to  express  his  gratitude  to 
the  officials  and  specialists  who  have  so  often  in  the  past  given 
him  information  and  the  benefit  of  their  opinions  in  city 
planning  and  allied  subjects.  He  wishes  especially  to  thank 
Thomas  Adams,  Esq.,  former  President  of  the  Town  Planning 
Institute  of  Great  Britain,  Secretary  and  Manager  of  Letch- 
worth  Garden  City,  and  Town  Planning  Inspector  to  the  Local 
Government  Board  of  England  and  Wales,  and  at  present 
Housing  and  Town  Planning  Adviser  to  the  Commission  of 
Conservation  of  Canada;  Albert  S.  Bard,  Esq.,  of  the  New 
York  Bar,  who  acted  as  secretary  of  the  Mayor's  Bill  Board 
Advertising  Commission,  and  has  been  for  so  many  years  a 
Director  and  twice  the  President  of  the  Municipal  Art  Society 
of  New  York;  Major  George  B.  Ford,  again  in  New  York, 
after  his  work  for  the  Red  Cross  and  the  Renaissance  des 
Cites  in  reconstructing  France;  Dr.  H.  Lindemann,  editor  of 
Kommunales  Jahrbuch  and  Director  of  the  Institute  for  Social 
Research  at  Cologne;  Hendrick  W.  van  Loon,  Esq.,  the  his- 
torian in  severe  print  and  gayer  but  no  less  instructive  pictures ; 
Dr.  John  Nolen,  the  planner  of  many  cities;  Frederick  Law 
Olmsted,  Esq.,  many  times  President  of  the  National  Con- 
ference on  City  Planning  and  the  American  City  Planning 
Institute,  and  at  this  time  President  of  the  American  Society 
of  Landscape  Architects ;  Lawson  Purdy,  Esq.,  for  many  years 
the  President  of  the  Board  of  Tax  Commissioners  of  the  City 
of  New  York;  M.  Georges  Risler,  founder  of  the  Societe  des 
Habitations  a  Bon  Marche  and  the  Societe  des  Architects 
Urbanistes  and  President  of  the  Musee  Social,  and  Dr.  Delos 
F.  Wilcox,  formerly  Deputy  Commissioner  of  Water,  Gas 
and  Electricity,  New  York  City,  for  their  kind  criticisms  of 
portions  of  this  work;  and  especially  Edward  M.  Bassett, 
Esq.,  eminent  authority  on  the  law  of  city  planning  and  zoning, 


xir  ACKNOWLEDGMENTS 

for  his  helpful  criticism  of  the  book  as  a  whole;  for  the  state- 
ments and  opinions  of  which,  however,  the  author  assumes 
entire  responsibility. 

The  author  wishes  also  to  thank  the  Chamber  of  Com- 
merce of  Akron,  Ohio  (for  whom  Akron  and  its  Planning 
Law  was  written),  the  City  Planning  Commission  of  Bridge- 
port, Connecticut  ( for  whom  the  Report  on  Legal  Methods  of 
Carrying  Out  the  Changes  Proposed  in  the  Plan  of  Bridgeport 
was  prepared),  D.  Appleton  and  Co.,  publishers  of  City 
Planning  (National  Municipal  League  Series,  New  York, 
1916),  and  the  editors  of  the  American  City,  Journal  of  the 
American  Institute  of  Architects,  Landscape  Architecture,  and 
the  National  Municipal  Review,  for  their  permission  to  use 
again  material  first  printed  by  them. 

The  author  is  greatly  indebted  to  William  C.  Dickinson, 
Esq.,  for  the  making  of  the  general  index,  and  to  the  Economics 
Department  of  the  New  York  City  Public  Library  and  the 
staff  of  the  Library  of  the  Harvard  University  School  of 
Landscape  Architecture,  for  invaluable  assistance  in  the  prep- 
aration of  the  bibliography. 


CONTENTS 

PAGE 

INTRODUCTION,  By  Aubrey  Tealdi v 

EDITORIAL  PREFACE,  By  Richard  T.  Ely ix 

ACKNOWLEDGMENTS xiii 

PART  I.    GENERAL  PRINCIPLES 

CHAPTER  I.    SCOPE x 


CHAPTER  II.    FUNDAMENTALS n 

PART  II.    PLANNING  THE  CITY  AS  A  WHOLE  .     .       27 
PART  III.    PLANNING  THE  PUBLIC  FEATURES 
CHAPTER  I.    ACQUIRING  THE  LAND 43 

CHAPTER  II.    EXCESS   AND  ZONE   CONDEMNATION   AND  REPLOTTING  IN 

EUROPE 59 

Note  A  '•  Statutes  of  Excess  and  Zone  Condemnation  and  Replot- 
ting  in  Europe.  No.  i.  The  English  Unhealthy  Areas  Act.  No.  2. 
The  French  Expropriation  Law  of  1841  as  Amended  by  the  Excess 
Condemnation  Law  of  1918.  No.  3.  The  German  Replotting  Laws. 

CHAPTER  III.    EXCESS  AND  ZONE  CONDEMNATION  AND  REPLOTTING  IN  THE 

UNITED  STATES 128 

Note  B  •'  Excess  Condemnation  Provisions  in  the  United  States. 
Constitutional  Amendments:  No.  i.  Massachusetts.  No.  2.  Ohio. 
No.  3.  Wisconsin.  No.  4.  New  York.  No.  5.  Rhode  Island. — Stat- 
utes: No.  6.  New  Jersey,  1870.  No.  7.  Ohio,  1904.  No.  8.  Oregon, 
1913.  No.  9.  Virginia,  1906-1916. — Statutes  under  Constitutional 
Amendments:  No.  10.  Massachusetts,  1912.  No.  n.  New  York, 
1916.  No.  12.  Rhode  Island,  1917. 

CHAPTER  IV.    PUBLIC  UTILITIES — THE  WATER  FRONT  , 161 

CHAPTER  V.    STREETS — SETBACKS — TRAFFIC  REGULATIONS 173 

Note  C:  Setback  Statutes  in  the  United  States.  No.  i.  Massa- 
chusetts. No.  2.  Indiana.  No.  3.  New  York. 

xv 


xv,  CONTENTS 


PAGE 


PART  IV.    PLANNING  THE  PRIVATE  FEATURES 
CHAPTER  I.    THE  PRINCIPLE  OF  BUILDING  REGULATION  AND  ZONING  .     .     191 

CHAPTER  II.    ZONING  IN  EUROPE 210 

Nott  D:  Zoning  Provisions  in  Germany.  No.  i.  Housing  in 
German  Cities.  No.  2.  The  Frankfort  Ordinances.  No.  3.  The 
Dusseldorf  Ordinance  No.  4.  Comparison  of  the  Cologne,  Frank- 
fort, Karlsruhe  and  Munich  Ordinances. 

CHAPTER  III.    ZONING  IN  CANADA  AND  THE  UNITED  STATES  ....    265 

Note  E:  Zoning  Provisions  in  the  United  States.  No.  i.  The 
Massachusetts  Constitutional  Amendment.  No.  2.  The  New  York 
Law  for  New  York  City.  No.  3.  The  New  York  Law  for  Cities. 
No.  4.  The  New  Jersey  Law  for  Cities.  No.  5.  The  District  of 
Columbia  Law.  No.  6.  The  New  York  City  Resolution.  No.  7. 
The  Milwaukee,  Wisconsin,  Ordinance.  No.  8.  The  Alameda,  Cali- 
fornia, Ordinance. 

PART  V.    CITY  PLANNING  FINANCE 357 

PART  VI.    PLANNING  FOR  THE  PROMOTION  OF  BEAUTY    381 

Note  F-'  Statutes  for  the  Promotion  of  Beauty  in  Europe.  No. 
i.  The  French  Law  for  the  Protection  of  Natural  Beauty.  No.  2. 
The  French  Law  for  the  Protection  of  Places  and  Objects  of  His- 
toric and  Artistic  Interest.  No.  3.  The  English  Ancient  Monuments 
Consolidation  and  Amendments  Act,  1913.  No.  4.  The  English  Ad- 
vertisements Regulation  Act,  1907. 


PART  VII.    PLANNING  ADMINISTRATION 
CHAPTER  I.    PLANNING  ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY    443 

Note  G:  The  General  Planning  Laws  of  Italy,  Germany  and 
Holland.  No.  i.  The  Italian  Expropriation  Law  of  1865.  No.  2. 
The  Prussian  Street  and  Building  Line  Law  of  1875  and  Housing 
Law  of  1018.  No.  3.  The  Saxon  Building  Law  of  1900.  No.  4. 
The  Dutch  Housing  Law  of  1901. 

CHAPTER   II.    PLANNING  ADMINISTRATION   IN   ENGLAND,   CANADA   AND 

FRANCE 498 

Note  It :  The  English  and  French  General  Planning  Laws.  No. 
t.  The  English  Town  Planning  Acts,  1909  and  1919.  No.  2.  The 
French  Planning  Law  of  1919. 

CHAPTE*  III.    PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES     .     .    535 

Note  I:  General  Planning  Laws  in  the  United  States.  No.  i. 
Tb«  Minnesota  Planning  Law.  No.  a.  The  New  Jersey  Municipal 


CONTENTS  xvii 

PAGE 

Plan  and  Art  Commission  Act.  No.  3.  The  New  York  City  and 
Village  Planning  Law.  No.  4.  The  New  York  City  Art  Com- 
mission Law.  No.  5.  Planning  Provisions  of  the  Charter  and  Or- 
dinances of  Cleveland,  Ohio.  No.  6.  The  Pennsylvania  General 
Plan  Act.  No.  7.  The  Pennsylvania  Planning  Act  for  Third  Class 
Cities;  the  Provisions  for  Approval  of  Plats.  No.  8.  Planning 
Provision  of  the  Pennsylvania  State  Highway  Act.  No.  9.  The 
Proposed  Massachusetts  Metropolitan  Planning  Act  No.  10.  The 
Pennsylvania  Suburban  Metropolitan  Planning  Act.  No.  n.  The 
New  York-New  Jersey  Compact  for  Planning  New  York  Harbor. 
No.  12.  The  New  Jersey  County  Planning  Act.  No.  13.  The  Cali- 
fornia Capital  City  Planning  Law.  No.  14.  The  Pennsylvania 
State  Planning  Bureau  Act 

BIBLIOGRAPHY 607 

TABLES  OF  STATUTES 631 

INDEX  OF  CASES 641 

INDEX  OF  STATUTES 649 

GENERAL  INDEX 659 


THE  LAW  OF  CITY 
PLANNING  AND  ZONING 


CHAPTER  I 
SCOPE 

Definition  of  City  Planning. — City  or  town  planning1 
is  the  guidance  of  the  physical  development  of  communities  in 
the  attainment  of  unity  in  their  construction.  Wherever  in  any 
locality  a  sufficient  concentration  of  population  has  occurred 
to  create  complexity,  here  will  be  found  a  network  of  interests, 
each  seeking  its  expression  in  the  physical  life  of  that  locality; 
and  it  is  the  task  of  city  planning,  either  by  prevention  or  by 
cure,  to  bring  these  interests  into  harmony,  in  the  unity  of  that 
locality.2 

1  In  England,  where  the  word  "town"  means  any  collection  of  buildings 
however  large,  the  science  is  called  town  planning;  while  in  the  United 
States,  where  the  larger  aggregations  are  generally  referred  to  as  cities, 
the  expression  city  planning  is  the  one  generally  employed.  The  phrase 
town  planning  is  in  common  use  in  Canada  and  Massachusetts. 

'The  extent  to  which  city  planning  should  go  into  detail,  is  gov- 
erned largely  by  practical  considerations.  The  "Introductory  State- 
ment" of  the  American  City  Planning  Institute,  based  upon  the  report 
of  a  sub-committee  of  which  Frederick  Law  Olmsted,  Esq.,  was  chair- 
man, says  on  this  subject: 

"2.  City  Planning  ...  is  concerned  with  the  territory  occupied  or  to 
be  occupied  by  any  community  and  with  prospective  physical  alterations 
in  that  territory  and  the  objects  upon  it,  in  so  far  as  such  alterations 
can  wisely  be  controlled  or  influenced  by  concerted  action  in  the  interest 
of  the  community  as  a  social  unit. 

"3.  No  prospective  physical  alteration  is  so  small,  so  localized,  or  so 

I 


a  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Planning  Small  Places. — In  this  country  the  planning  of 
localities  is  usually  referred  to  as  "city"  planning.  This  is  no 
doubt  due  to  the  fact  that  until  recently  all  our  planning  legis- 
lation, recognized  as  such,  applied  only  to  cities,  and  interest  in 
planning  was  confined  almost  exclusively  to  large  cities.  In 

specialized  in  technique  as  to  be  excluded  merely  for  that  reason  from 
the  scope  of  city  planning,  provided  it  can  wisely  and  effectively  be 
controlled  in  the  common  interest.  .  .  . 

"5  In  theory  there  are  no  limitations  to  the  extent  of  coordination 
desirable  among  the  diverse  planning  activities  which  shape  the  physical 
growth  of  a  community  or  to  the  desirability  of  estimating  future  con- 
tingencies and  taking  account  of  them  in  planning;  but  practically  there 
are  decided  limitations  upon  the  amount  of  time  and  effort  which  can 
be  withdrawn  from  the  vital  business  of  getting  things  done  for  the 
sake  of  study  and  of  planning  what  to  do  and  how  best  to  do  it. 

"a.  The  so-called  'practical  man'  is  apt  to  underestimate  the  value  of 
far-sighted,  deliberate  and  well-coordinated  planning;  while  the  so- 
called  'theorist'  is  apt  to  overestimate  the  extent  to  which  such  planning 
can  profitably  be  carried  and  to  underestimate  its  cost  in  delays  and  in 
dissipation  of  energy  which  might  be  producing  more  immediate  prac- 
tical results.  The  well-balanced  city  planner,  along  with  his  broad 
grasp  of  underlying  theories,  recognizes  that  practical  results  year  in 
and  year  out  are  the  final  test,  and  shapes  his  work  accordingly. 

'  b.  It  is  important  therefore  to  apply  sound,  clear,  penetrating  com- 
mon sense  to  the  problem  of  how  far  it  will  pay  to  go  with  investiga- 
tions and  planning,  under  any  given  conditions,  before  proceeding  to 
the  execution  of  plans. 

"6.  The  classes  of  specific  planning  problems  which  are  most  dis- 
tinctively matters  of  city  planning  are: 

"a.  Those  which  lie  so  much  outside  of  the  fields  effectively  covered 
by  existing  specialized  planning  agencies  that  the  community  is  likely 
to  suffer  from  their  neglect.  Such  specialized  fields  include,  for  ex- 
ample, sewerage,  water-supply,  parks  and  rapid  transit. 

"b.  Those  in  which  a  close  coordination  of  planning  in  separate  fields 
of  technical  work  is  likely  to  secure  advantages  commensurate  with  the 
effort  of  obtaining  such  coordination. 

"c.  Those  in  which  the  permanent  interests  of  a  community  justify 
the  framing  of  plans  for  specific  improvements  in  such  a  manner  as 
to  meet  not  merely  the  immediate  objects  of  the  improvements  but  also 
the  contingencies  of  a  remoter  future  or  community  needs  which  arc 
only  indirectly  connected  with  those  objects. 

Merely  to  deal  with  problems  of  the  above  classes  as  they  arise 
in  the  course  of  community  growth  is  city  planning  of  an  opportunist 
•ort.  But  constructive  city  planning  requires  also  that  many  such  prob- 
lems, long  before  they  become  acute,  shall  be  anticipated  and  consid- 
ered under  the  impulse  of  imagination  applied  toward  the  attainment 
of  the  larger  social  objectives  of  the  community.  .  .  . 

"o.  Just  as  city  planning  must  unite  the  points  of  view  of  many  tech- 
nical specialists  in  approaching  its  problems  and  must  balance  a  regard 
for  immediate  expediency  with  a  far-*ii»htr<l  outlook  to  the  future,  so 
it  mutt  appreciate  at  their  full  importance  and  must  adequately  har- 
moni/e.  in  every  one  of  its  problems,  the  requirements  of  convenience, 
healthfulness  and  efficiency  in  operation,  of  orderly  and  beautiful  ap- 
pearance and  of  economic  ability  to  meet  the  costs. 


SCOPE  3 

Germany  the  planning  provisions  apply  both  to  small  and  to 
large  places  and  planning  is  carried  on  in  both.  In  this  coun- 
try, too,  in  several  of  our  states  planning  laws  for  towns  and 
villages  have  recently  been  passed,  of  which,  however,  little  use 
has  as  yet  been  made. 

It  is  essential  that  every  locality  in  which  any  degree  of 
concentration  has  occurred  or  may  be  expected  should  be 
regulated  in  its  growth;  the  smaller  the  place  the  greater  being 
the  opportunity  of  planning.  For  this  reason  it  has  been  sug- 
gested that  a  name  be  selected  for  the  science  which  would  not 
by  implication  exclude  the  guidance  of  the  growth  of  the  small 
locality.  Probably  as  good  a  name  for  this  purpose  as  any 
would  be  "community  planning,"  if  indeed  it  is  really  worth 
while  to  attempt  to  supersede  the  expressions  now  in  general 
use. 

Planning  for  the  Community  to  Come. — In  the  United 
States  we  are  apt  to  think  only  of  the  planning  of  communities 
already  in  existence,  and  in  practice  we  rarely  attempt  to  guide 
their  growth  until  they  have  already  attained  a  considerable 
size.  This  is  a  grave  mistake.  For  good  or  for  ill,  as  soon  as 
two  roads  of  a  given  width  cross  at  a  given  place  and  angle, 
and  a  building  starts  at  the  intersection,  important  features  of 
the  future  community,  its  life  and  growth,  have  been  carelessly, 
perhaps,  but  in  all  probability  irrevocably  fixed.  The  British 
planning  acts  of  1909  and  1919,  and  the  statutes  in  many  other 
parts  of  the  British  Empire  modeled  on  them,  provide  for 
the  planning  not  only  of  "any  land  which  is  in  course  of 
development"  but  of  land  which  "appears  likely  to  be  used  for 
building  purposes."  This  clause  has  fortunately  received  a 
broad  interpretation  in  England,  and  land  there  has  been 
planned  under  it  which  will  not,  in  all  probability,  be  built  on 
for  fifty  or  a  hundred  years.  Nevertheless,  for  much  of  Eng- 
land the  provision  comes  too  late.  In  Canada  and  other  parts 
of  the  Empire,  under  similar  provisions,  more  may  still  be 
done;  but  nowhere  does  it  assure  all  that  is  necessary,  and  the 
attempt  is  constantly  being  made  by  statutory  amendment  and 
improved  practice,  to  plan  future  building  land  earlier  and 
more  generally. 


4  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Regional  Planning. — Of  late  much  has  been  written  and 
something  done,  in  the  way  of  the  survey  of  the  needs  and 
resources  of  regions  much  larger  than  a  single  city  or  town. 
This  idea  has  now  spread  to  city  planning.  In  planning,  as  in 
other  fields,  the  unit  varies  with  the  purposes  and  scope  of  the 
undertaking;  for  some  purposes  the  city,  for  others  a  district 
of  which  the  city  is  the  focus,  a  larger  district  embracing  many 
cities,  or  even  the  state,  the  nation  or  the  continent  itself,  being 
chosen.  The  object  of  the  regional  plan,  as  in  all  planning,  is  to 
bring  about  as  efficient  and  unified  a  physical  development  of 
the  unit  as  possible.  A  regional  plan  supplements,  rather  than 
supplants,  the  plans  of  the  individual  communities  in  the  region 
selected. 

City  Planning  Distinguished  from  City  Construction. — 
City  planning,  as  its  name  indicates,  deals  with  the  planning 
of  communities  rather  than  with  their  construction.  The  im- 
portance before  doing  the  work  of  making  the  plan  and  follow- 
ing it  except  as  deliberately  varied  or  supplemented,  is  more 
or  less  self-evident,  and  will  be  shown  more  fully  later.  Cer- 
tain phases  of  the  law  and  practice  of  city  construction,  how- 
ever, are  so  closely  related  to  the  planning  of  that  construction 
that  they  should  be  considered  in  connection  with  it,  and  are, 
therefore,  to  be  regarded  as  a  part  of  city  planning,  to  be  taken 
up  in  treatises  on  that  subject,  such  as  this. 

Scope  of  City  Planning. — Since  the  purpose  of  city  plan- 
ning is  the  attainment  of  unity  in  city  construction,  it  includes 
not  only  the  planning  of  the  community  as  a  whole  but  of 
any  portion  or  detail  of  it,  viewed  as  a  part  of  the  entirety. 
Thus  the  location  of  a  park,  and  of  its  transverse  drives,  walks, 
etc  ,  in  their  relation  to  the  thoroughfare  system  of  the  city, 
and  the  determination  of  the  general  character  of  the  park  as 
a  part  of  the  entire  recreation  system  of  the  city,  are  func- 
tions of  city  planning  no  less  than  of  landscape  architecture; 
the  determination  of  details  of  the  scheme  of  planting,  of  scenic 
drives  and  walks,  etc.,  are  matters  of  landscape  architecture 
into  which  the  city  plan  cannot  afford  to  go  without  risk  of 
dissipating  energy  and  failing  to  accomplish  its  larger  object  of 
general  coordination.  Similarly,  a  scheme  of  main  trunk 


SCOPE  5 

sewers,  their  controlling  grades,  capacities  and  points  of  out- 
fall, as  related  to  street  locations,  etc.,  is  a  matter  of  city  plan- 
ning no  less  than  of  sanitary  engineering;  the  detailed  design 
of  these  sewers  and  the  design  of  local  laterals,  etc.,  is  an 
important  matter  of  sanitary  engineering  but  of  minor  con- 
cern in  city  planning. 

Building  Regulation  and  Zoning. — City  planning  is 
sometimes  thought  of  as  the  planning  only  of  the  pub- 
lic features  of  a  city,  such  as  its  streets,  parks  and  pub- 
lic buildings.  Most  of  the  land  within  the  limits  of  a  modern 
city,  however,  is  privately  owned  and  used;  and  if  the  entire 
city  is  to  be  planned,  the  development  of  this  land  must  also 
be  guided.  For  the  most  part  city  land  in  private  use  is  em- 
ployed or  destined  for  employment  as  the  site  of  buildings. 
Almost  invariably  the  construction  of  buildings  in  cities  is 
governed  by  a  voluminous  and  detailed  building  code,  most  of 
which  consists  of  rules  with  regard  to  stresses  and  strains,  the 
choice  of  materials  for  fire  proof  and  semi-fire  proof  buildings, 
the  minimum  width  of  stairs,  plumbing,  height  of  rooms,  etc. 
This  is  a  science  in  itself,  into  which  city  planning  cannot  go 
with  profit  either  to  building  construction  or  to  city  planning. 
It  can  deal,  however,  with  those  aspects  of  building  which 
more  directly  affect  the  use  of  other  properties,  such  as  the 
height  and  area  of  structures  and  their  general  use,  especially 
when  these  rules  vary  in  different  parts  of  a  city,  thus  estab- 
lishing districts  each  to  some  extent  with  a  character  of  its 
own. 

Housing  and  City  Planning. — Of  the  buildings  of  the 
modern  city,  erected  for  all  the  many  purposes  for  which  build- 
ings in  cities  are  needed,  residences  are  by  far  the  most  nu- 
merous. In  the  construction  of  these  buildings,  city  planning 
may  regulate  the  more  general  aspects,  but  cannot  go  into  detail. 
For  the  good  of  both,  housing  and  city  planning  as  sciences 
should  remain  distinct.  Nevertheless,  the  difficulty  of  the 
housing  problem,  and  the  importance  of  planning  in  its  solu- 
tion, has  often  resulted  in  legislation  dealing  with  both  sub- 
jects within  the  limits  of  the  same  law. 

Other  Phases  of  City  Planning. — Recent  city  planning 


6  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

literature  abounds  in  pleas  for  planning  activities  variously 
called  rural  or  country,  metropolitan,  county,  state,  national, 
interstate  and  international,  planning.  These  expressions  have 
never  as  yet  been  clearly  defined  or  distinguished,  and  are  often 
used  by  different  writers  with  different  meanings.  On  analysis 
they  will,  it  is  believed,  be  found  to  signify:  (i)  planning  of 
territory  of  a  particular  character;  or  (2)  planning  within  the 
limits  of  a  particular  governmental  unit ;  or  (3)  planning  under 
the  jurisdiction  of  a  particular  governmental  unit;  or  (4)  more 
than  one  of  these  activities. 

Rural  Planning;  Country  Planning. — Rural  planning 
may  have  one  or  more  of  the  following  interpretations :  ( I ) 
planning  of  territory,  rural  in  character,  for  farming  and  simi- 
lar rural  uses.  Important  as  this  is  for  national  life,  obviously 
it  is  not  city  planning;  (2)  planning  for  urban  use  of  those 
parts  of  a  district,  prevailingly  rural  in  character,  which  are,  or 
are  likely  to  be,  built  up  with  any  degree  of  concentration,  such 
as  present  or  prospective  villages  and  smaller  and  more  amor- 
phous aggregations.  Such  planning  comes  within  the  scope 
of  city  planning  as  defined  and  discussed  in  this  work;  (3) 
planning  in  territory,  rural  in  character,  of  roads,  parks,  drain- 
age systems,  etc.  In  so  far  as  such  roads  and  other  features  are 
entirely  for  rural  use,  this  is  not  city  planning;  in  other  cases 
it  may  properly  be  regarded  as  within  the  scope  of  city  or 
regional  planning  and  is  so  treated  in  this  work;  (4)  planning 
within  the  limits  of,  or  under  the  authority  of,  a  non-urban 
local  governmental  unit.  The  territory  may  be  urban  or  rural 
in  character.  This  expression  is  used  in  this  sense,  at  times,  in 
England  and  Canada,  but  not  in  the  United  States. 

Country  planning  has  the  same  meaning  as  rural  planning, 
(I),  (2)  and  (3). 

There  is  a  growing  tendency  to  treat  as  an  entity  the  various 
phases  of  rural  or  country  planning,  both  those  which  may 
be  considered  as  city  planning  and  those  which  cannot  be  so 
considered.  This  tendency  is  the  result  of  the  recognition  of 
the  fact  that  both  rural  and  city  planning  are  parts  of  the 
more  inclusive  task  of  community  organization,  between  which 
no  sharp  line  can  be  drawn. 


SCOPE  7 

Metropolitan  Planning. — Metropolitan  planning  is  the 
planning  with  a  view  to  the  conservation  both  of  their  diverse 
and  of  their  common  interests,  of  a  city  or  group  of  cities  and 
the  outside  territory  within  its  sphere  of  more  immediate  influ- 
ence. In  the  accomplishment  of  this  result,  it  is  the  division  of 
this  district  by  jurisdictional  lines  that  creates  the  administra- 
tive difficulty.  In  a  number  of  foreign  countries,  in  cases 
where  the  district  is  entirely  within  the  limits  of  a  larger  local 
government,  this  government  is  given  the  necessary  jurisdic- 
tion; and  where  the  national  or  the  state  government  has  as- 
sumed supervision  over  local  planning,  it  has  often  undertaken 
this  task.  In  this  country,  as  a  partial  solution  of  this  problem, 
a  number  of  states  have  given  the  city  a  limited  planning  juris- 
diction outside  its  legal  boundaries;  and  as  a  more  complete 
solution,  in  one  case,  have  created  an  inclusive  planning  author- 
ity, leaving  jurisdiction  in  other  matters  to  the  various  local 
authorities.  Where  the  lines  dividing  the  city  or  district  are 
provincial  or  state,  or  are  national,  the  administrative  problem 
is  still  more  difficult.  These  questions  will  be  taken  up  here- 
after. 

All  metropolitan  planning  is  a  species  of  regional  planning, 
a  proper  distinction  between  the  two  being  perhaps  that  metro- 
politan planning  concerns  itself  with  the  more  distinctively 
urban  problems,  and  regional  planning  to  a  greater  extent  with 
the  development,  conservation,  and  utilization  of  natural  re- 
sources. 

County  Planning. — County  planning  may  have  one  or 
more  of  the  following  meanings :  ( I )  the  city  planning  under 
county  authority  or  otherwise  of  the  more  populous  parts  of 
the  county;  (2)  the  regional  planning  of  the  county  or  of 
some  of  its  main  features,  such  as  principal  roads,  parks,  drain- 
age systems,  etc.;  (3)  the  administrative  supervision  of  local 
planning  in  the  county. 

State  Planning. — State  planning  may  have  one  or  more 
®f  the  following  meanings:  (i)  the  planning  by  the  state  of 
its  capital  city,  or  such  parts  or  features  of  it  as  are  within  the 
direct  planning  jurisdiction  of  the  state  government;  (2)  the 
cooperation  of  the  state  with  the  city  and  other  local  authorities 


8  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

in  the  planning  of  the  state  capital  and  the  neighboring  terri- 
tory; (3)  the  administration  and  supervision  by  the  state  of 
planning  by  local  authority;  (4)  the  direct  planning  of  locali- 
ties by  the  state;  (5)  the  promulgation  and  enforcement  of 
certain  planning  rules  applicable  throughout  the  state  in  all 
cases  or  in  all  cases  of  the  same  class  or  character,  as  for  in- 
stance minimum  requirements  as  to  the  space  to  be  left  around 
the  dwellings,  to  be  found  in  state  housing  and  tenement  house 
laws;  (6)  the  regional  planning  of  the  state.  Such  planning 
may  be  (a)  the  more  or  less  complete  regional  planning  of 
certain  portions  of  the  state,  or  of  all  the  territory  within  it; 
(fr)  the  planning,  for  all  or  a  portion  of  the  state,  of  certain 
features  properly  part  of  a  complete  regional  plan,  such  as  cer- 
tain systems  of  roads,  parks,  drainage,  etc.;  (c)  the  conserva- 
tion, development,  and  apportionment  of  the  resources  of  the 
state,  or  one  or  more  of  them,  as  is  done  in  many  states  to  some 
extent  by  state  boards  of  conservation,  etc.;  (</)  the  distribu- 
tion of  industries  and  population  throughout  the  state  with 
relation  to  agricultural  and  other  resources.  This  might  be 
done  to  a  very  considerable  extent  by  regulating  the  location 
of  railroads  and  fixing  passenger  and  especially  freight  rates, 
upon  which  industry,  and  the  distribution  of  population,  are 
so  largely  dependent. 

National  Planning. — The  distinction  between  state  and 
national  planning  exists  in  countries  which  are  federations  of 
states  or  similar  units,  like  Canada  or  the  United  States,  and 
has  no  place  in  countries  with  a  centralized  government,  like 
England  and  France.  The  scope  of  state  and  national  plan- 
ning, respectively,  in  federations,  depends  upon  the  federal 
constitution  of  the  country  in  question.  The  jurisdiction  of 
the  states  and  the  nation  in  the  Ulttted  States,  under  our  Con- 
stitution, will  be  taken  up  in  that  part  of  this  work  devoted  to 
administration.  In  brief  this  jurisdiction  is  as  follows: 

The  United  States  has  (a)  full  planning  power  over  those 
portions  of  the  country  which  are  not  within  the  limits  of  any 
state,  except  in  so  far  as  it  has  delegated  this  power  to  local 
governments;  (b)  planning  power  over  areas  within  the  si 
acquired  for  special  federal  purposes,  such  as  forts,  sites  of 


SCOPE  9 

federal  buildings,  national  parks,  etc.,  in  so  far  as  is  necessary 
for  the  fulfillment  of  the  purposes  for  which  they  were  ac- 
quired; (c)  planning  power  in  so  far  as  incidental  to  power 
over  matters  which  by  the  Constitution  are  of  federal  concern, 
such  as  interstate  commerce,  navigation,  and  post  roads,  which 
now  includes  railroads;  (d)  power  of  experimenting,  collecting 
and  disseminating  information  and  giving  advice  to  state  and 
local  authorities  and  to  individuals  in  their  planning.  This 
power  is  not  given  the  nation  by  any  specific  provision  in  the 
Constitution,  but  is  held  to  be  inherent  in  the  national,  as  in 
every  government.  It  is  therefore  also  a  power  of  the  state 
and  local  governments ;  but  many  things  can  be  done  under  such 
a  power  more  completely  and  effectively  and  more  economically 
by  the  nation  in  behalf  of  all  the  states,  than  by  each  state  for 
itself.  The  United  States  government  has  made  little  use  of 
its  planning  powers. 

Except  as  possessed  by  the  United  States,  and  to  some  ex- 
tent concurrently  with  it  when  the  Federal  government  has 
jurisdiction,  planning  power  over  territory  within  the  limits 
of  each  of  the  individual  states  is  in  that  state  to  be  exercised 
by  it,  or  delegated  to  local  governments  within  it  as  it  sees  fit. 

Interstate  and  International  Planning. — Interstate  or 
international  planning  is  the  planning  of  enterprises  or  territory 
common  to  more  than  one  state  or  nation,  such  as  the  bridging 
of  a  stream  flowing  between  two  sovereignties,  or  the  regula- 
tion of  its  flow,  the  planning  of  a  city  or  region  on  both  sides 
of  the  boundary,  etc.  In  centralized  countries,  such  as  England, 
there  is  no  interstate,  as  distinguished  from  international, 
planning;  while  in  federal  countries  the  limitations  of  the  fed- 
eral constitution  on  the  powers  of  the  "sovereign"  states  to  a 
greater  or  less  extent  differentiate  the  two. 

Interstate  and  international  matters  may  be  adjusted  by 
agreement,  managed  by  joint  commissions,  etc.,  but  such 
methods,  sufficient  for  the  accomplishment  of  a  definite  enter- 
prise limited  in  time,  are  most  unsatisfactory  where  continuous 
development  and  administration  for  the  indefinite  future  are 
necessary.  In  a  few  such  cases,  as  for  instance  for  the  im- 
provement of  the  navigation  of  the  Danube,  international 


io  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

agreement  has  established  a  continuing  local  government,  and 
there  is  reason  to  think  that  the  same  expedient  may  be  adopted 
in  interstate  planning  of  a  similar  character;  indeed  such  an 
authority  for  the  port  of  New  York,  located  partly  in  the  state 
of  New  York,  partly  in  the  state  of  New  Jersey,  has  already 
been  appointed  by  the  two  states,  in  the  solution  of  the  difficult 
and  important  administrative  problem  without  which  the 
planning  of  the  port  as  a  unit  seems  impossible.8 

City  Planning  Law. — City  planning  law  is  the  law  relat- 
ing to  city  planning  matters.  The  subject  will  be  taken  up 
under  the  following  heads: 

I.     General  Principles. 
II.     Planning  the  City  as  a  Whole. 

III.  Planning  the  Public  Features,  such  as  the  streets, 

parks,  etc.,  and  including  the  quasi-public  fea- 
tures, often  privately  owned,  but  always  subject 
to  public  regulation,  such  as  street  railways, 
water  works,  etc.,  etc. 

IV.  Planning  the  Private  Features,  such  as  the  land 

privately  owned  and  used,  and  the  buildings  to 
be  erected  on  it,  in  some  of  their  more  general 
aspects. 

V.     City  Planning  Finance. 
VI.     Planning  for  the  Promotion  of  Beauty. 
VII.     City  Planning  Administration. 

•S«  p.  548. 


CHAPTER  II 
FUNDAMENTALS 

Basis  of  Right  of  Public  to  Plan. — A  city  consists  of 
land  assigned  to  streets,  parks  and  other  public  purposes,  and 
of  land  devoted  to  houses,  stores,  factories  and  similar  private 
purposes.  To  the  attainment  of  unity  in  city  construction, 
which  is  the  aim  of  city  planning,  some  measure  of  control  over 
all  this  land,  whether  publicly  or  privately  used,  is  necessary. 
This  guidance  the  state  may  exercise  in  two  ways :  by  govern- 
ment ownership  and  by  governmental  regulation.  The  legal 
principles  under  which  this  ownership  and  regulation  are  ob- 
tained are  fundamental  in  city  planning  law. 

Planning  by  Right  of  Ownership  of  Land. — It  is  by 
virtue  of  its  title  to  the  land  that  the  public  plans  the  public 
features  of  cities.  In  order  to  construct  these  features  the 
public  must  own  the  land  necessary  for  the  purpose  and,  once 
owning  it,  may  build  these  features  much  as  it  sees  fit.  As 
land  owner  the  public  also  indirectly  but  profoundly  influences 
private  development.  For  instance,  the  method  of  subdividing 
land  is  an  important  factor  in  determining  its  use.  Thus  if  the 
lots  in  a  residential  area  are  deep  and  narrow,  the  houses  on 
them  are  usually  narrow  or  there  are  houses  both  on  the  front 
and  the  rear  of  the  lot,  and  in  either  case  the  supply  of  light 
and  air  is  almost  invariably  insufficient.  With  wide,  shallow 
lots  these  particular  evils  are  not  so  apt  to  occur.  Again,  a 
district  of  large  lots  is  better  fitted  and  therefore  more  likely 
to  receive  heavy  industrial  development,  a  section  of  small  lots 
to  be  chosen  for  other  uses.  Now  it  is  the  layout  of  public 
streets  which,  by  fixing  the  size  and  shape  of  blocks,  is  the  most 
important  factor  in  land  subdivision.  So  too  in  various  ways 
private  use  of  land  is  strongly  influenced  by  the  location  and 


12  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

method  of  construction  of  other  public  features  such  as  parks, 
docks,  and  public  buildings. 

The  Power  to  Condemn  Land. — As  a  rule  the  land  which 
the  public  owns  in  a  city  is  already  devoted  to  some  specific 
public  purpose,  and  the  city  as  it  grows  must  acquire  the  land 
for  its  public  features  from  private  owners.  Manifestly  the 
power  of  the  public  by  land  ownership  directly  to  control  the 
public  features  of  the  city  and  indirectly  to  influence  its  private 
features,  is  dependent  upon  the  right  to  acquire  this  land.  Like 
the  private  citizen  the  state  may  do  this  by  agreement  with  the 
owner.  In  order,  however,  that  public  improvement  may  not 
be  hampered  by  private  greed  or  whim,  it  is  essential  that  the 
state  should  be  able  to  "condemn"  the  land  it  needs,  taking  it 
without  the  consent  of  its  proprietor.  This  right  of  "eminent 
domain,"  as  it  is  called,  is  the  first  legal  power  fundamental  in 
city  planning  to  be  examined  and  related  to  the  law  as  a  whole. 

The  Power  to  Regulate  the  Use  of  Land  Privately 
Owned. — Deeply  as  the  public,  by  virtue  of  its  control  as 
land  owner  over  the  city's  public  features,  influences  the  devel- 
opment of  land  privately  owned,  it  is  not  in  this  way  exercising 
any  power  beyond  that  possessed  by  any  land  owner  similarly 
situated.  Frequently  the  proprietor  of  an  extensive  tract  lays 
it  out  in  streets,  parks  and  other  features  public  in  character, 
and  in  lots  for  industrial,  residential  and  other  uses  essentially 
private.  Occasionally — as,  notably  in  Letchworth,  Hampstead, 
and  other  garden  city  and  garden  suburb  developments — this 
has  been  done  for  the  purpose  of  affecting  the  private  use  of 
land  in  those  localities;  and,  in  fact,  has  had  this  result  to  a 
marked  extent.  Except,  however,  as  the  garden  city  companies 
retain  some  degree  of  ownership  in  the  land  which  has  passed 
into  private  uses — as  they  often  do— this  influence  is  all  the 
power  that  the  company  has  over  private  use.  Unlike  the 
private  citizen  or  company,  the  public  is  not  so  limited.  It  is 
also  ruler,  and  by  law  and  ordinance  may  directly  control 
private  land  and  the  persons  using  it.  And  we  are  beginning 
to  see  the  need  of  this  direct  control  and  to  avail  ourselves  of 
In  spite,  in  some  cases,  of  adequate  planning  of  public 
features,  cities  become  congested  and  confused,  and  we  are 


13 

learning  to  rely  upon  building  regulations  to  remedy,  or  at 
least  check,  these  tendencies.  This  power  of  regulation  in  the 
public  interest,  called  the  "police  power,"  is  the  second  of  the 
two  powers  fundamental  in  city  planning  which  it  is  the  func- 
tion of  this  work  to  examine  and  relate  to  our  law  as  a  whole. 

In  this  undertaking  it  will  be  necessary  at  the  outset  some- 
what more  accurately  to  define  and  distinguish  between  the 
power  of  eminent  domain  and  the  police  power. 

Eminent  Domain. — Eminent  domain  is  the  power  of  the 
state  to  take  the  property  of  the  private  citizen.  In  all  civilized 
countries  it  is  exercised  only  for  a  public  purpose,  on  payment 
of  compensation.  Manifestly  the  state  exists  for  the  good  of 
its  citizens  and  should  not  take  property  or  do  any  other  act 
except  for  the  public  advantage — it  is  only  in  a  despotism  that 
the  monarch  seizes  property  for  his  own  use  or  to  reward  a 
favorite.  Manifestly,  too,  the  state  should  pay  for  the  prop- 
erty it  needs,  making  its  levy  for  this  purpose  as  equally  as 
possible  upon  all  its  property  owners  instead  of  upon  one. 

The  manner  of  securing  the  enforcement  of  these  condi- 
tions upon  the  exercise  of  the  power  of  eminent  domain  differs 
in  this  and  in  other  countries.  In  England,  for  instance, 
Parliament  has  the  power  to  pass  any  law  it  pleases  and  is 
only  restrained  by  public  opinion.  On  the  continent  of  Europe 
these  conditions  are  generally  contained  in  fundamental  law, 
but  the  duty  of  guarding  that  law  is  entrusted  to  the  legisla- 
ture.1 In  this  country  not  only  are  these  requirements  in  our 

1  Thus  the  French  "Declaration  of  Rights"  of  1791,  inspired  by  the 
bills  of  rights  in  our  constitutions,  contained  much  the  same  guaranties, 
including  the  guaranty  of  private  property  rights ;  and  these  guaranties 
are,  expressly  or  by  implication,  a  part  of  all  subsequent  French  na- 
tional constitutions,  which  the  French  legislator  in  his  acts  is  in  duty 
bound  to  respect,  and  does  respect.  See  in  general  Baltbie,  Droit  Public 
et  Administratif  (2d  ed.,  Paris,  Larose  and  Furcel,  1885),  and  similar 
books ;  and  also  the  Civil  Code,  art.  545.  In  Germany,  too,  under  the 
constitutions  in  force  before  the  war,  the  rights  considered  by  us  as 
fundamental,  including  the  right  of  private  property,  are  guaranteed 
by  provisions  which  as  a  rule  are  more  difficult  of  legislative  enactment 
and  repeal  than  the  usual  provisions  of  law.  They  were  contained  in 
the  national  constitution  of  1849;  but  not  that  of  1871,  since  they  were 
to  be  found  in  the  constitutions  of  the  individual  states.  In  so  far  as 
the  pre-war  constitutions  have  been  superseded,  the  new  provisions 
almost  invariably  protect  private  property.  Many  of  these  constitu- 
tions, if  they  may  be  so  called,  do  not  seem  as  yet  to  have  been  put  in 


14  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

written  constitutions  but  these  constitutions  are  construed  by 
our  courts,  which  hold  that  any  legislative  act  contrary  to  their 
interpretation  of  them  is  void.  A  law  manifestly  taking  private 
property  for  public  use  without  compensation,  could  be  chal- 
lenged in  the  courts  both  there  and  here ;  but  once  passed  a  law 
restricting  such  rights  in  the  name  of  the  public  and  its  inter- 
ests is  open  to  question  only  in  this  country. 

The  fifth  amendment  to  the  Constitution  of  the  United 
States  provides  that  "no  person  shall  ...  be  deprived  of  life, 
liberty  or  property  without  due  process  of  law ;  nor  shall  private 
property  be  taken  for  public  use  without  just  compensation." 
This  is  a  protection  against  arbitrary  seizure  of  property  by  the 
United  States,  but  has  been  repeatedly  held  not  to  apply  to 
state  action.  Under  the  fourteenth  amendment  of  the  United 
States  Constitution,  however,  "no  state  shall  .  .  .  deprive  any 
person  of  life,  liberty  or  property  without  due  process  of  law; 
nor  deny  any  person  within  its  jurisdiction  the  equal  protection 
of  the  la 

It  has  been  held  that  any  taking  of  property  in  any  state 
except  for  a  public  purpose  on  payment  of  just  compensation, 
is  not  "due  process  of  law"  and  is  thus  illegal  under  the  Con- 
stitution of  the  United  States.  The  citizens  of  many  states, 
however,  not  satisfied  with  the  protection  against  state  action 
thus  afforded  by  the  Federal  Constitution,  have  inserted  pro- 
visions against  the  taking  of  property  except  for  a  public  pur- 
pose on  payment  of  compensation,  in  the  state  constitutions. 

The  legal  cases  interpreting  these  constitutional  clauses  fill 
many  large  volumes.  Most  of  them  involve  one  of  two  ques- 
tions: (i)  what  is  a  public  use,  or  (2)  what  is  "property" 
and  the  "taking"  of  property? 

permanent  form.  Sec  generally  as  to  older  constitutions,  Schubert, 
Verfassung  und  Vcrwahung  des  Deutschtn  Rciches  und  dcs  prcus- 
sitfhfH  Slaatfs  (aoth  ed.,  1906).  or  any  similar  book. 

^In    Belgium,    ton.    the    ("(institution    of    1831    provided    (art.    n)    that 
"No  one  can  be  deprived  "f  his  property  except  for  a  public  UM    in 
cases  and  by  such  a  method  as  is  established  by  law  and  on  previous 
payment  of  a   just   indemnity."     The  enforcement  of   this  clause  is  en- 
trusted largely  to  the  Icgisl.v 

The   laws  of   the  iropean   countries   are   similar,   in   this   re- 

spect, to  that  of  France,  Belgium,  and  Germany. 


FUNDAMENTALS  15 

Public  Use. — The  difficulty  of  defining  a  public  use  lies 
in  the  diversity  of  public  needs  and  of  the  methods  of  satisfy- 
ing them.  It  is  plain  that  the  state  and  its  subdivisions  need 
the  buildings  in  which  they  carry  on  the  work  of  the  govern- 
ment in  its  different  departments;  it  is  less  and  less  obvious, 
because  less  and  less  imperative,  that  the  state  needs  to  abolish 
dangerous  grade  crossings  partly  at  public  expense,  destroy 
and  pay  for  property  which  threatens  public  health,  limit  at^ 
public  expense  the  height  of  private  buildings  around  a  state 
house  or  a  public  square  to  avoid  disfigurement,  allow  private 
property,  on  payment,  to  be  taken  for  the  purpose  of  irrigating 
private  land  or  developing  private  mines,  in  order  to  promote 
the  general  prosperity.  It  is,  however,  established  law  that 
the  doing  of  these  things  for  the  promotion  of  the  public  health, 
safety,  morals  and  general  convenience  and  prosperity  is  a  pub- 
lic use  of  property  taken  for  the  purpose. 

It  is  plain  that  a  building  in  which  the  state,  to  the  exclusion 
of  all  others,  performs  its  functions,  is  being  used  by  the  pub- 
lic ;  less  and  less  obvious  that  the  public  is  using  property  when 
it  merely  prevents  an  unsafe  employment  of  it,  destroys  prop- 
erty dangerous  to  the  public  health,  or  prevents  a  use  of  it  that 
will  deface  public  property.  If,  however,  the  property  is  not 
used  by  the  public,  it  is  certainly  used  for  the  public  to  the  total 
or  partial  exclusion  of  the  private  owner  and  destruction  of 
his  rights. 

The  Taking  of  Property. — What,  then,  is  the  taking  of 
property,  which,  if  for  a  public  use,  is  justified  by  our  consti- 
tutions? This  will  perhaps  be  determined  best  by  first  ascer- 
taining what  is  meant  by  property. 

Most  people  consider  property  as  a  tangible  thing;  but  in 
fact  it  is  intangible — not  a  thing,  but  the  relation  to  a  thing, 
or  right  to  it. 

In  the  case  of  land,  it  has  been  found  convenient  to  divide 
the  right  to  it  into  many  rights.  First,  the  division  may  be 
according  to  duration ;  land  may  be  owned  for  a  term  of  years, 
during  life,  forever,  etc.  These  are  called  estates  in  land — 
for  years,  for  life,  in  fee,  etc.  Secondly,  ownership  may  be 
divided  according  to  the  purpose  for  which  it  is  exercised — 


16  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  right  of  passage  over  land,  for  all  or  certain  specified  pur- 
poses, in  any  or  in  certain  specified  places ;  the  right  to  profit 
by  the  taking  away  of  some  part  of  the  land,  such  as  sand, 
timber,  minerals,  forever  or  for  a  definite  period ;  the  right  of 
access,  or  of  light  and  air  over  it,  or  of  a  view  across  it,  etc., 
called  easements.  Thirdly,  the  land  may  be  divided  into  layers, 
separate  ownership  being  allowed  of  the  surface,  the  space 
above,  the  space  below  the  surface,  etc.  Indeed,  it  is  difficult  to 
specify  the  possible  divisions  of  land  ownership.  Complete 
ownership  has  been  defined  to  be  the  sum  total  of  the  lawful 
rights  of  an  individual  to  the  possession,  use  or  enjoyment  of 
his  land,  so  that  when  this  total  has  in  any  way  been  abridged, 
lessened  in  value  or  destroyed,  there  has  been  a  taking  of 
property. 

Any  use  or  enjoyment  of  land,  to  be  a  property  right  in  it, 
must  be  legally  recognized  as  such.  It  is  the  right  of  a  land 
owner  not  to  have  his  land,  and  the  air  over  it,  invaded  to  an 
unreasonable  degree  by  his  neighbor's  smoke,  or  smells,  or 
noise;  but  rays  of 'light  may  convey  to  him  the  image  of  an 
ugly  billboard,  and  he  has  no  redress.  If  the  city  lessens  the 
value  of  his  property,  or  authorizes  a  private  corporation  to 
lessen  it,  by  erecting  a  viaduct  in  the  street  against  it,  compen- 
sation must  be  provided  for;  but  the  city  may  give  a  permit 
to  a  hospital  to  be  erected  near  him,  or  itself  build  a  jail,  to 
his  detriment,  without  payment  to  him. 

Having  defined  property,  the  definition  of  a  taking  is  a 
simple  matter — it  is  any  substantial  invasion  of  any  property 
right. 

In  some  cases  where  injuries  really  substantial  were  held 
by  the  courts  not  to  be  a  taking  of  property,  statutes  and  con- 
stitutional amendments  have  been  subsequently  passed  giving 
a  remedy.  The  most  important  instance  of  this  is  the  change 
of  grade  of  streets.  Under  the  older  law,  even  after  a  grade 
had  been  legally  established  by  the  authorities,  and  the  land 
owner  had  built  in  reliance  on  their  action,  they  could  change 
the  grade  and  the  owner  had  no  redress.  The  law  has  n<>\\ 
pretty  generally  been  altered  so  as  to  require  compensation  not 
only  when  property  has  been  taken  but  when  it  has  been  "dam- 


FUNDAMENTALS  17 

aged"  or  "injuriously  affected,"  a  doctrine  which  protects  the 
owner  in  cases  of  change  of  grade  and  many  similar  cases. 
This  is  really  a  case  of  the  correction  of  a  mistake  in  legal 
decision  by  subsequent  statute  or  constitutional  provision — an 
illogical,  but  convenient  and  effective,  method  of  procedure. 

The  Police  Power. — Only  the  smaller  portion  of  the  land 
within  a  city  is  needed  for  public  uses.  The  rest  is  necessarily 
devoted  to  houses,  stores,  factories  and  other  uses,  private  in 
their  nature.  It  is  conceivable  that  the  public  should  own  all 
the  land  within  the  limits  of  cities  and  thus  control  private  as 
well  as  public  use  by  right  of  ownership.  Such  certainly  is  not 
the  case  at  present  or  likely  to  be  in  the  near  future ;  and  until 
that  time  comes  the  public  must  guide  the  private  use  of  city 
land  by  regulations  imposed  by  virtue  of  sovereignty.  Regu- 
latory legislation  is  so  general  and  of  such  wide  application 
that  there  can,  and  should  be,  no  obligation  to  compensate  those 
affected  by  it.2  Measures  of  this  sort  are  imposed  by  what  in 
this  country  has  come  to  be  referred  to  as  the  "police  power." 

What,  then,  is  the  police  power?  The  courts,  in  passing 
on  this  question,  have  repeatedly  said  that  it  could  not  be 
adequately  defined.  It  is  inherent  in  the  states  of  the  Ameri- 
can Union,  and  was  not  surrendered  when  the  federal  union 
was  formed.  Like  all  governmental  powers,  it  must  be  exer- 
cised for  the  public  good.  Like  the  others,  it  must  be  used 
reasonably.  Freund,  in  his  standard  book  on  the  subject,  de- 
fines it  as  the  power  which  by  restraint  and  compulsion  aims 
to  promote  the  public  health,  safety,  morals,  and  general  wel' 
fare.  Court  decisions  have  held  that  it  may  be  used  for  the 
public  convenience  and  the  general  comfort  and  prosperity. 

All  this,  however,  does  not  amount  to  a  definition  of  the 
police  power;  to  obtain  it,  many  activities  of  the  state,  such  as 
the  administration  of  justice,  taxation,  eminent  domain,  etc., 
must  first  be  excluded,  and  the  police  power  remains  the  undif- 
f erentiated  residuum  of  legislative  authority ;  thus  covering,  as 

'In  some  cases,  as,  for  instance,  the  killing  of  tubercular  cows, 
the  statutes  provide  for  a  payment  to  their  owners,  which,  however,  is 
usually  less  than  the  value  of  the  cows;  thus  mitigating  the  hardship 
and  lessening  somewhat  the  chances  of  concealment. 


,8  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Judge  Andrews  of  New  York  puts  it,"  "a  wide  range  of  partic- 
ular unexpressed  powers  .  ,  .  affecting  freedom  of  ?>  action, 
personal  conduct  and  the  use  and  control  of  property 

Regulation   and   the   Taking   of    Property    Rights.- 
Regulation,  if  it  is  to  have  an  effect  at  all,  must  necessarily  c 
prive  the  persons  affected  by  it  of  personal  and  proprietary 
r^hts  whX.  but  for  the  making  of  it,  they  would  lawfully 
enjoy     The  United  States  Constitution  forbids  the  taking  o 
property  without  compensation.    Does  it  therefore  follow  t 
the  police  power  for  the  exercise  of  which  there  is  no  compen- 
sation is  superior  to  that  Constitution?    Not  at  all.    Legisla- 
tion under  the  police  power  is  invalid,  which  is  contrary  i 
only  to  the  fifth  and  fourteenth  amendments  of  the  Const 
tion    but  to  the  commerce  clause,  the  clause  forbidding 
impairment  of  contracts  or  any  other  constitutional  provision, 
or  to  state  constitutions.     But  constitutions  are  to  be  mter- 


the  profoundest  of   American  jurists  of   our   tinjj,   in  his   Cases   on 

^ 


^^^^^^^^^ 

other   meaning  than  the   general   power   of   go 
minions  belonging  to  every  sovengnty. 

« 


^  oter   meanng  its 

and 


Se^owth  of  constitutional  government  came  a  differentiation  of  «,  her 
£L£  F  Suernal  administration,  such  as  civ  1  and  criminal  justice. 
Station,  etc  leaving  the  term  >>lu.  10  -tan.l  for  the  rema,n,,1R  un- 
dSerSated  fv.ncti.5is.  In  Germany  today  there  has  been  *•*««** 
of  the  term.  They  have  there  not  only  safety  police  (the  police  in  trie 
MDuIar  »cnse)  but  many  oth<  M  ich  ^  hvulding,  fire,  health,  busi- 

52.    Mk!      In  other  countries  the  same  duti.-*  arc  performed  by  offi- 

of  the   iQth  century. 


FUNDAMENTALS  19 

preted  not  only  logically  but  in  the  light  of  history  and  the 
common  use  of  words.  Governments  always  have  regulated 
and  always  must  to  some  extent  regulate  without  compensa- 
tion the  relations  of  one  individual  to  others.  It  is  not  to  be 
supposed  that  the  makers  of  our  Constitution  intended  to  forbid 
such  legislation.  On  this  subject  Justice  Holmes,  of  the  Su- 
preme Court  of  the  United  States  says :  5 

"If  the  fourteenth  amendment  is  not  to  be  a  greater  hamper  upon 
the  established  practices  of  states  in  common  with  other  governments 
than  I  think  was  intended,  they  must  be  allowed  a  certain  latitude  in 
the  minor  adjustments  of  life,  even  though  by  their  action  the  burdens 
of  a  part  of  the  community  are  somewhat  increased.  The  traditions 
and  habits  of  centuries  were  not  intended  to  be  overthrown  when 
that  amendment  was  passed." 

The  Effect  of  Usage  and  Public  Opinion. — In  fixing 
the  limits  of  such  powers  as  the  police  power  and  that  of  emi- 
nent domain,  the  courts  have  been  influenced  not  only  by  past 
usages  and  customs,  constituting  what  is  already  history,  but 
by  current  usage  and  custom,  which  is  history  in  the  making. 
In  this  connection  the  Supreme  Court  of  the  United  States  says  : 

"It  may  be  said  in  a  general  way  that  the  police  power  extends  to 
all  the  great  public  needs.  Cornfield  v.  United  States,  167  U.  S.  518. 
It  may  be  put  forth  in  aid  of  what  is  sanctioned  by  usage,  or  held 
by  the  prevailing  morality  or  strong  and  preponderant  opinion  to  be 
greatly  and  immediately  necessary  to  the  public  welfare." 

Another  instance,  worthy  of  notice,  of  the  recognition  by 
the  courts  of  the  influence  which  public  opinion  rightly  has  in 
the  decision  as  to  what  is  for  the  general  welfare,  is  furnished 
by  the  case  of  People  v.  Schweinler  Press,7  in  which  the  New 
York  Court  of  Appeals,  reversing  its  previous  opinion,8  held 
that  a  statute  regulating  and  limiting  the  hours  of  labor  of 
women  in  factories  was  constitutional.  In  justifying  this 
change  the  court  says  : 

8  Interstate,  etc.,  Railway  Co.  v.  Commonwealth,  207  U.  S.  79  at  87 
(loo?)- 

"Noble   State   Bank  v.   Haskell,  219  U.   S.    104    (1911). 

'214  N.  Y.  395    (1915). 

•In   People  v.  Williams,  189  N.  Y.   131    (1907). 


a,  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

"Especially  and  necessarily  was  there  lacking  [when  rendering 
the  feme  dedsion]  evidence  of  the  extent  to  which  during ^the  inter- 
veningTears  the  opinion  and  belief  have  spread  and  strengthened Jhat 
uch  night  work  is  injurious  to  women;  of  the  laws,  as  "fcating 
'uch  teHef  since  adopted  by  several  of  our  own  states  and  by  large 
Europtn  countries,  and  the  report  made  to  the  legislature  by •£ 
own  agencv,  the  factory  investigating  commission,  based  on  mve 
Sn  of  ac  ual  conditions  and  study  of  scientific  and  medical  opinion 
Sat night  work  by  women  in  factories  is  generally  mjunous  and 
ought  to  be  prohibited." 

The  Effect  of  Local  Conditions.— In  a  country  as  large 
as  ours  physical  conditions,  usage,  opinion  and  all  the  sur- 
rounding circumstances,  so  important  in  the  determination  of 
the  necessity  and  therefore  the  validity  of  a  statute  claimed 
be  for  the  public  advantage,  vary  greatly  in  its  widely  separate- 
sections      It  cannot  therefore  be  assumed  that  there  is  any 
one  standard  which  can  be  set  for  the  entire  country  in  accord- 
ance with  which  all  these  questions  should  be  decided;  1 
local  conditions  must  be  studied  and  the  question  in  each  case 
settled  in  the  light  of  these  conditions.    This  fact  the  Suprcn 
Court  of  the  United  States  has  repeatedly  recognized, 
in  holding  that  the  physical  conditions  in  California  may  well 
make  it  for  the  public  advantage  there  to  take  water  rights  for 
the  purpose  of  furnishing  water  to  irrigate  privately  owned 
land,  the  court  says : 9 

"It  is  obvious  .  .  .  that  what  is  a  public  use  frequently  and  largely 
depends  upon  the  facts  and  circumstances  surrounding  the  particular 
subject-matter  in  regard  to  which  the  character  of  the  use  is  ques- 

"To  provide  for  the  irrigation  of  lands  in  States  where  there  is 
no  color  of  necessity  therefor  within  any  fair  meaning  of  the  term. 
and  simply  for  the  purpose  of  gratifying  the  taste  of  the  owner   or 
his  desire  to  enter  upon  the  cultivation  of  an  entirely  new  kind 
crop,  not  necessary  for  the  purpose  of  rendering  the  ordinary  culti 
vation  of  the  land  reasonably  remunerative,  might  be  regarded  by 
courts  as  an  improper  exercise  of  legislative  will,  and  the  use  might 
not  be  held  to  be  public  in  any  constitutional  sense,  no  matter 
many  owners  were  interested  in  the  scheme.    On  the  other  hand,  in  a 
State  like  California,  which  confessedly  embraces  millions  of  acres  of 

•Fallbrook  Irrigation  District  v.  Bradley,  164  U.  S.  112  (1896). 


FUNDAMENTALS  21 

arid  lands,  an  act  of  the  legislature  providing  for  their  irrigation 
might  well  be  regarded  as  an  act  devoting  the  water  to  a  public  use, 
and  therefore  as  a  valid  exercise  of  the  legislative  power." 

In  a  similar  case  10  the  same  court  in  recognizing  the  import- 
ance of  local  custom  and  opinion  in  the  right  determination  of 
such  questions,  says: 

"When  we  come  to  inquire  what  are  public  uses  for  which  the 
right  of  compulsory  taking  may  be  employed,  and  what  are  private 
uses  for  which  the  right  is  forbidden  we  find  no  agreement,  either 
in  reasoning  or  conclusion.  The  one  and  only  principle  in  which 
all  courts  seem  to  agree  is  that  the  nature  of  the  uses,  whether  public 
or  private,  is  ultimately  a  judicial  question.  The  determination  of 
this  question  by  the  courts  has  been  influenced  in  the  different  states 
by  considerations  touching  the  resources,  the  capacity  of  the  soil, 
the  relative  importance  of  industries  to  the  general  public  welfare, 
and  the  long-established  methods  and  habits  of  the  people.  In  all 
these  respects  conditions  vary  so  much  in  the  States  and  Territories  of 
the  Union  that  different  results  might  well  be  expected.  .  .  .  The  pro- 
priety of  keeping  in  view  by  this  court,  while  enforcing  the  Four- 
teenth Amendment,  the  diversity  of  local  conditions  and  of  regarding 
with  great  respect  the  judgments  of  the  state  courts  upon  what  should 
be  deemed  public  uses  in  that  State,  is  expressed,  justified,  and  acted 
upon  in  Fallbrook  Irrigation  District  v.  Bradley,  ub.  sup.,  Clark  v. 
Nash,  ub.  sup.,  and  Strickley  v.  Highland  Boy  Mining  Co.,  ub.  sup." 

Province  of  Legislature  and  Court. — In  order  to  under- 
stand fully  the  decisions  of  the  courts  with  regard  to  the  limits 
of  powers  like  the  police  power  and  the  power  of  eminent 
domain,  it  is  important  to  keep  in  mind  the  respective  pro- 
vinces of  the  legislature  and  the  State  and  United  States  Courts 
in  the  decision  of  such  questions. 

In  theory  the  legislature  and  the  courts  are  separate  and 
coordinate  departments  of  government.  It  follows  that  the 
courts,  in  passing  upon  a  legislative  act,  cannot  inquire  into 
the  motive  of  the  legislature  in  enacting  it  nor  the  wisdom  of 
the  course  it  chose  to  pursue,  but  only  into  its  power  to  act  as 
it  did,  leaving  it  entirely  to  the  legislature  itself  to  determine 
the  time,  manner  and  occasion  of  its  exercise.  Nor  have  the 
courts  the  right  lightly  to  overrule  the  decision  of  the  legisla- 

10Hairston  v.  Danville  and  Western  Railway  Co.,  208  U.  S.  598  (1908). 


22  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ture;  on  the  contrary  the  court,  before  declaring  the  statute 
void,  must  be  convinced  of  its  invalidity  beyond  a  reasonable 
doubt.  This  principle  is  stated  by  Chief  Justice  Marshall  in  a 
leading  case  on  the  subject11  as  follows: 

"It  is  but  a  decent  respect  to  the  wisdom,  the  integrity,  and  the 
patriotism  of  the  legislative  body,  by  which  any  law  is  passed,  to 
presume  in  favor  of  its  validity,  until  its  violation  of  the  constitution 
is  proved  beyond  all  reasonable  doubt." 

The  same  principle  is  expressed  by  the  same  justice,  per- 
haps with  more  accuracy,  in  another  connection. 

"It  has  been  truly  said,  that  the  presumption  is  in  favor  of  every 
legislative  act,  and  that  the  whole  burthen  of  proof  lies  on  him  who 
denies  its  constitutionality."  * 

Attitude  of  United  States  Courts  toward  State  Laws. 
— The  attitude  just  stated  is,  in  theory  at  least,  that  of  the 
courts,  both  state  and  national,  toward  the  acts  of  state  and 
national  legislatures.  Where  the  United  States  Courts  are 
reviewing  decisions  with  regard  to  state  statutes  and  constitu- 
tions, especially  where  the  question  of  what  is  a  public  use  or 
what  tends  to  promote  the  general  welfare,  is  involved,  this 
attitude  is  even  more  pronounced;  for  the  local  conditions, 
which  are  so  important  in  the  decision  of  these  questions,  are 
presumably  better  known  to  the  local  authorities  than  to  the 
justices  of  the  United  States  Courts.  For  this  reason  the  dec- 
laration in  a  state  statute  or  constitution  that  a  given  use  of 
property  is  a  public  use  or  a  given  regulation  of  property  is  for 
the  promotion  of  the  general  welfare,  especially  if  held  valid 
by  the  courts  of  that  state,  has  great  weight  with  the  United 
States  Court.  This  principle  by  which  the  courts  of  the 
United  States  should  be  guided,  the  Supreme  Court  of  the 
United  States  has  repeatedly  stated.  Thus  in  another  part  of 
an  opinion  already  quoted  ia  that  court  says: 

"Ogden  v.  Saundcrs.   12  Wheat.. n   (I      S  )  213  (18- 

"Brown   v.   Mary-land.    i_'   \Yluat. .11    (U.    S.)    419   (1827);   for   a  late 

case  citing  many  others  to  the  same  effect,  see  Erie  R.  R.  v.  Williams, 

233  U.   5.  685  (1914) 

M  Fallhrook  Irrigation  District  v    P.radley. 


FUNDAMENTALS  23 

"The  Supreme  Court  of  California  has  held  in  a  number  of  cases 
that  the  irrigation  act  is  in  accordance  with  the  state  constitution,  and 
that  it  does  not  deprive  the  land-owners  of  any  property  without  due 
process  of  law;  that  the  use  of  the  water  for  irrigation  purposes 
under  the  provisions  of  the  act  is  a  public  use,  and  the  corporations 
organized  by  virtue  of  the  act  for  the  purpose  of  irrigation  are  public 
municipal  corporations  organized  for  the  promotion  of  the  prosperity 
and  welfare  of  the  people.  Turlock  Irrigation  District  v.  Williams, 
76  California,  360;  Central  Irrigation  District  v.  De  Lappe,  79  Cali- 
fornia, 361 ;  in  re.  Modera  Irrigation  District,  92  California  296. 

"We  do  not  assume  that  these  various  statements,  constitutional 
and  legislative,  together  with  the  decisions  of  the  state  court,  are 
conclusive  and  binding  upon  this  court  upon  the  question  as  to  what 
is  due  process  of  law,  and,  as  incident  thereto,  what  is  a  public  use. 
As  here  presented  these  are  questions  which  also  arise  under  the 
Federal  Constitution,  and  we  must  decide  them  in  accordance  with 
our  views  of  constitutional  law.  .  .  . 

"The  people  of  California  and  the  members  of  her  legislature 
must  in  the  nature  of  things  be  more  familiar  with  the  facts  and 
circumstances  which  surround  the  subject  and  with  the  necessities 
and  the  occasion  for  the  irrigation  of  the  lands  than  can  any  one  who 
is  a  stranger  to  her  soil.  This  knowledge  and  familiarity  must  have 
their  due  weight  with  the  state  courts  which  are  to  pass  upon  the 
question  of  public  use  in  the  light  of  the  facts  which  surround  the 
subject  in  their  own  State.  For  these  reasons,  while  not  regarding 
the  matter  as  concluded  by  these  various  declarations  and  acts  and 
decisions  of  the  people  and  legislature  and  courts  of  California,  we 
yet,  in  the  consideration  of  the  subject,  accord  to  and  treat  them 
with  very  great  respect,  and  we  regard  the  decisions  as  embodying 
the  deliberate  judgment  and  matured  thought  of  the  courts  of  that 
State  on  this  question."  * 

In  accordance  with  this  principle  the  Supreme  Court  of  the 
United  States  has  said : 

"See  also  Welch  v.  Swasey,  214  U.  S.  91  (1909),  where  the  court 
says  it  ''feels  the  greatest  reluctance  in  interfering  with  the  well-con- 
sidered judgments  of  the  courts  of  a  State  whose  people  are  to  be  affected 
by  the  operation  of  the  law.  The  highest  court  of  the  state  in  which 
statutes  of  the  kind  under  consideration  [viz.  statutes  regulating  the 
height  of  buildings  in  cities]  are  passed  is  more  familiar  with  the  par- 
ticular causes  which  led  to  their  passage  (although  they  may  be  of  a 
public  nature)  and  with  the  general  situation  surrounding  the  subject- 
matter  of  the  legislation  than  this  court  can  possibly  be.  We  do  not, 
of  course,  intend  to  say  that  under  such  circumstances  the  judgment  of 
the  state  court  upon  the  question  will  be  regarded  as  conclusive,  but 
simply  that  it  is  entitled  to  the  very  greatest  respect,  and  will  only  be 
interfered  with,  in  cases  of  this  kind,  where  the  decision  is,  in  our  judg- 
ment, plainly  wrong." 


24  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

"We  therefore  content  ourselves  with  saying  that  while  this  court 
has  refrained  from  any  attempt  to  define  with  precision  the  limits 
of  the  police  power,  yet  its  disposition  is  to  favor  the  validity  of  laws 
relating  to  matters  completely  within  the  territory  of  the  state  enact- 
ing them  and  it  so  reluctantly  disagrees  with  the  local  legislative  au- 
thority, primarily  the  judge  of  the  public  welfare,  especially  when 
its  action  is  approved  by  the  highest  court  of  the  State  whose  people 
are  directly  concerned,  that  it  will  interfere  with  the  action  of  such 
authority  only  u'hen  it  is  plain  and  palpable  that  it  has  no  real  or  sub- 
stantial relation  to  the  public  health,  safety,  morals,  or  to  the  general 
welfare."  u 

In  applying  this  same  principle  specifically  to  the  power  of 
eminent  domain  the  same  court  calls  attention  to  the  fact  that : 

"Xo  case  is  recalled  where  this  court  has  condemned  as  a  vio- 
lation of  the  Fourteenth  Amendment  a  taking  upheld  by  the  state 
court  as  a  taking  for  public  uses  in  conformity  with  its  laws.  .  .  . 
\Ye  must  not  be  understood  as  saying  that  cases  may  not  arise  where 
this  court  would  decline  to  follow  the  state  courts  in  their  determina- 
tion of  the  uses  for  which  land  could  be  taken  by  the  right  of  eminent 
domain.  The  cases  cited,  however,  show  how  greatly  we  have  de- 
ferred to  the  opinions  of  the  state  courts  on  this  subject,  which  so 
closely  concerns  the  welfare  of  their  people.  ...  It  remains  for  the 
future  to  disclose  what  cases,  if  any,  of  taking  for  uses  which  the 
state  constitution,  law,  and  court  approve  will  be  held  to  be  forbidden 
hy  the  Fourteenth  Amendment  to  the  Constitution  of  the  United 
States."  " 

Much  uncertainty  has  existed  in  the  law  of  this  country 
with  regard  to  those  rights  which  have  always  been  regarded 
as  most  important,  such  as  that  of  liberty,  equality  before  the 
law,  property  and  due  process  of  law.  There  are  two  main 
reasons  for  this  unfortunate  fact:  first,  the  litigant  is  entitled 
to  invoke  the  protection  of  the  guaranties  of  both  the  national 
and  state  constitutions,  and  these  guaranties,  although  dealing 
with  the  same  fundamental  rights,  often  vary  both  in  form 
and  in  substance  in  the  various  constitutions;  so  that  it  is  diffi- 
cult to  determine  whether  and  to  what  extent  cases  with  regard 
to  the  same  general  subject  in  different  jurisdictions  are  in 

isack  Co.  v.  Chicago,  242  U.  S.  526  (1917).    The  italics  are  the 
autli 

M  Hairston  v.  Danville  &  Western  Railway,  208  U.  S.  508  at  607  (1008). 


FUNDAMENTALS  25 

accord  or  in  conflict.  Second,  until  recently  appeals  in  such 
cases  from  the  state  decision  to  the  Supreme  Court  of  the 
United  States,  by  which  alone  such  doubts  and  differences  can 
be  eliminated,  were  permitted  only  in  those  cases  in  which  the 
state  provision  was  upheld  by  the  state  court.  By  a  recent 
change  in  law  17  appeals  are  now  allowed  whichever  way  the 
state  court  decided  the  question,  and  in  so  far  as  uncertainty 
was  caused  by  this  phase  of  the  law  it  may  be  expected  with 
time  to  disappear. 

It  is  generally  conceded  that  the  decisions  of  the  Supreme 
Court  of  the  United  States  have  been  more  favorable  to  meas- 
ures intended  to  promote  social  reform  than  those  of  the 
highest  courts  of  the  individual  states.18  This  is  due  in  part, 
no  doubt,  to  the  fact  that  as  a  rule  the  members  of  the  Supreme 
Court  of  the  United  States,  chosen  from  the  entire  country, 
have  had  a  wider  and  more  varied  experience  than  the  judges 
of  the  highest  courts  of  any  one  of  the  states ;  but  in  part  it  has 
been  because  heretofore  invariably,  in  cases  of  conflict  of 
opinion  in  such  questions,  only  the  decisions  sustaining  state 
action  have  come  before  the  United  States  Court  for  review, 
and  these  decisions  were  supported  by  the  strong  presumption  in 
favor  of  the  action  of  the  state  authorities. 

Difference  between  Police  Power  and  Eminent 
Domain. — For  a  statute  or  other  governmental  act  to  be  a 
valid  exercise  of  the  power  of  eminent  domain  or  of  the  police 
power,  it  is  evident  from  what  has  already  been  said  that  it  must 
in  either  case  tend  to  promote  the  public  health,  safety,  morals 
or  general  welfare.  What,  then,  is  the  line  of  difference  be- 
tween these  two  powers?  The  analysis  of  the  cases  seems  to 
show  that  it  is  largely  one  of  degree.  Is  it  reasonable  and 
proper,  under  all  the  circumstances,  that  the  public  good  sought 
should  be  attained  without  compensation  to  those  whose  rights 
are  to  be  limited  to  this  end?  If,  on  the  whole,  those  affected 
are  benefited  by  the  measure,  if  the  right  surrendered  can  no 

"See  U.  S.  Comp.  Stats.,  1916,  Vol.  2,  Sec.  1214;  (Judicial  Code, 
Sec.  237  as  amd.) 

18  See  on  this  subject,  Goodnow,  Social  Reform  and  the  Constitution 
(the  Macmillan  Company,  New  York,  1911)  ;  especially  pp.  329  ff. 


26  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

longer,  in  the  light  of  advancing  public  opinion,  be  retained  in 
its  fullness  by  its  present  possessor,  if  the  sacrifice  to  him  is 
slight  or  if  the  number  affected  is  great,  so  that  compensation 
is  impracticable — in  all  such  cases  compensation  is  not  pro- 
vided for;  otherwise  the  law  demands  it.  In  the  decision,  his- 
tory, custom,  opinion,  as  well  as  surrounding  circumstances, 
play  their  part 


PART   II 
PLANNING  THE  CITY  AS  A  WHOLE 

The  City  Plan. — Since  the  purpose  of  city  planning  is  the 
attainment  of  unity  in  city  construction,  there  must  be,  in  all 
the  steps  of  city  construction  worthy  the  name  of  city  planning, 
either  definitely  on  paper  or  more  vaguely  and  variably  in  the 
minds  of  the  makers  of  the  city,  a  plan,  in  outline  at  least,  of 
the  city  as  a  whole,  to  which  any  part  of  that  planning,  however 
small,  shall  relate.  The  creation  of  such  a  plan,  covering  the 
entire  area  within  the  city's  sphere  of  influence,  is  the  first  task 
of  the  city  planner,  to  be  followed  from  time  to  time,  as  neces- 
sity arises,  by  the  planning  of  details,  extensions,  and  such 
modifications  of  existing  features  as  unforeseen  changes  or 
further  experience  and  study  seem  to  dictate.1 

Content  of  Plan. — What,  then,  should  the  plan  contain? 
The  complexity  of  city  life  is  great,  the  factors  of  its  physical 
development,  numerous.  In  order  to  secure  unity,  planning 
should  include  and  harmonize  as  many  as  possible  of  these  fac- 
tors, public,  semi-public  and  private,  such  as  the  systems  of 
streets  with  their  building  lines  or  set  backs,  the  waterfront  and 
its  improvements,  the  parks  and  other  public  open  spaces,  the 
public  and  semi-public  buildings  and  their  sites,  the  transpor- 
tation systems,  both  local  and  long  distance,  with  their  respec- 
tive freight  and  passenger  stations  and  terminals,  the  gas, 
water,  electric  and  similar  public  utility  systems,  the  subdivi- 
sion of  building  land  and  the  regulation  of  the  height,  area 
with  relation  to  the  size  of  lot,  and  use  of  structures  on  it. 
There  is  more  or  less  adequate  precedent  for  the  inclusion  of 
all  the  above  features  in  a  city  plan  in  this  country.2 

1With  regard  to  the  limitation,  for  practical  reasons,  of  the  field  of 
city  planning,  see  p.  i,  note  2. 
a  See  p.  562,  note  32. 

97 


28  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  entire  urban  area,  however,  need  not  be  planned  in 
detail.  Thus  spaces  for  public  buildings  and  parks  should  be 
reserved,  to  be  devoted  to  more  specific  uses  and  laid  out  as 
required;  in  the  newer  parts  of  the  city  only  the  principal 
streets  need  be  fixed,  leaving  the  minor  streets  to  be  filled  in 
from  time  to  time  as  the  necessity  for  them  arises ;  and,  beyond 
the  present  city,  the  city  of  the  future  may  be  left  unplanned 
except  for  the  laying  out  of  the  main  thoroughfares  connecting 
the  city  with  the  cities  and  villages  outside,  and,  perhaps,  the 
imposition  of  provisional  building  and  zoning  regulations  for 
the  areas  between  them. 

Partial  Planning. — Very  few  cities  in  this  country  have 
comprehensive  city  plans,  although  in  many  of  them  certain 
features  have  been  thought  out  and  executed  with  care  and 
with  good  results.  This  partial  method  of  planning  is  open  to 
grave  criticism.  New  York,  for  instance,  built  an  extensive 
system  of  subway  and  elevated  transportation  to  relieve  con- 
gestion in  the  older  parts  of  the  city,  which,  for  lack  of  zoning 
restrictions,  has  been  instrumental  in  adding  to  the  city  new 
congested  areas  without  greatly  relieving  those  already  in 
existence.  Nevertheless  partial  planning  is  not  necessarily  a 
mistake.  The  American  public  is  not  educated  to  the  neces- 
sity of  a  comprehensive  plan,  but  is  sometimes  alive  to  the 
advantage  of  some  one  feature  of  such  a  plan,  as,  for  instance, 
transportation  or  zoning;  and  the  planner,  unable  to  do  what 
he  would,  must  do  what  he  can.  In  such  cases,  however,  the 
need  of  a  general  plan  should  always  be  kept  in  mind,  and  a* 
an  incident  to  the  smaller  task,  as  much  of  the  larger  under- 
taken as  is  feasible.  This  is  in  fact  the  practice  of  wise  city 
planners;  for  instance,  all  good  zoning  is  based  on  preliminary 
surveys,  which  are  partial  planning  studies. 

Enforcement  of  Plan. — The  city  plan,  in  order  that  the 
many  features  included  in  it  may  in  their  development  be  made 
to  conform  to  it,  must  be  enforced.  These  features  arc  widely 
different  in  their  nature,  and  the  measures  to  be  taken  to  secure 
thU  con  funnily  must  vary  accordingly.  The  public  features, 
such  as  the  highways  and  open  spaces,  are  constructed  by  the 
city,  or,  if  built  by  private  persons,  become  public  only  by  ac- 


PLANNING  THE  CITY  AS  A  WHOLE  29 

ceptance  by  the  city;  and  the  city,  by  controlling  its  own  acts, 
can  see  to  it  that  to  this  extent  these  features  are  in  accord 
with  its  plan.  The  semi-public  features,  such  as  the  privately 
owned  utilities,  are  planned  and  constructed  by  private  inter- 
ests but  their  location,  in  so  far  as  it  is  on,  over  or  under  city 
property,  is  usually  subject  to  the  city's  consent,  which  may  be 
made  dependent  upon  conformity  to  the  city  plan.3  The  im- 
provements of  private  land  for  private  use  are  made  by  the 
private  owners  of  this  land.  To  some  extent  these  improve- 
ments may  be  controlled  indirectly  by  the  planning  of  the  city's 
public  features,  to  some  extent  directly  by  building  and  zoning 
regulations,  which  are  a  part  of  the  city  plan.  The  legal  right 
of  the  city  to  pass  such  regulations  seems  clear.  This  subject 
is  taken  up  fully  in  that  part  of  this  work  devoted  to  the 
planning  of  the  private  features  of  the  city.4 

A  measure  of  public  control  over  land  which  is,  and  is  to 
remain,  in  private  ownership  and  use  is  essential  not  only  to 
the  regulation  of  its  planning  for  such  use  in  the  public  interest, 
but  also  to  the  carrying  out  of  the  public  features  of  the  city. 
If  feasible  the  city  could  insure  the  possibility  of  the  construc- 
tion of  its  public  features  as  planned  by  purchasing  the  land 
needed  for  them ;  but  prudent  planning  must  always  anticipate 
present  needs  by  many  years.  Cities,  for  lack  of  the  necessary 
funds,  seem  never  able  to  purchase  more  land  than  is  required 
for  the  immediate  future;  and  to  attempt  to  assess  the  cost  of 
improvements  on  land  so  long  before  these  improvements  are 
needed  would  be  most  unjust.  Unless,  therefore,  the  city  can, 
by  some  method,  make  adherence  to  the  public  features  of  the 
plan  binding  upon  the  owners  of  the  land  affected  by  it,  this 
land  is  sure  to  be  used  in  ways  which  will  make  it  very  expen- 
sive and  therefore  practically  impossible,  when  the  time  comes, 
to  construct  these  features  as  they  were  originally  planned. 

8  The  state  also  has  the  right  to  grant  or  refuse  a  charter  to  a  utility 
and  to  amend  its  charter;  and  also  to  prescribe,  within  certain  limits, 
the  character  of  service  and  the  rates  to  be  charged  for  it.  A  portion 
of  this  power  the  state  usually  delegates  to  the  city;  and  could  delegate 
more.  All  these  powers  could  be  used  to  obtain  conformity  to  the  city 
plan. 

4  Part  IV. 


30  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

This  the  history  of  many  American  cities  only  too  clearly 

^Foreign  Methods  and  American  Attempts  to  Attain 
Similar  Results.— In  foreign  countries  where  city  planning 
has  been  most  successful,  adherence  by  the  land  owners  to 
plan  of  streets,  and  in  some  cases  a  few  of  the  other  mam 
features,  of  the  future  city  is  secured  either  by  forbidding  1 
land  owner,  between  the  time  of  the  official  adoption  of 
plan  and  the  taking  of  his  land,  to  make  any  improvements 
likely  to  interfere  with  the  execution  of  that  plan  or  by  pr< 
viding  that  when  subsequently  his  land  is  taken,  he  shall  receive 
no  compensation  for  any  such  improvements.8 
has  been  in  operation  for  many  years,  not  only  in  Roman  Law 
countries,  but  in  England  and  Canada,  whose  laws  and  tradi 
tions  are  so  like  our  own ;  and  has  not  been  found  to  be  unju 
to  the  land  owner.     The  street  is  essential  to  the  land  owner 
in  the  profitable  use  of  his  land.    The  only  right  of  which  the 
plan  deprives  him  is  the  right  to  build  in  the  bed  of  mapped 
streets  between  the  time  when  the  plan  is  adopted  and  the 
when  it  is  carried  out.    In  the  vast  majority  of  cases  this  righ 
is  worthless  both  because  if  the  plan  is  a  good  one  it  indicate 
where  the  street  and  the  building  should  be  for  the  besl 
ests  of  the  land  owner  and  because  if  the  plan  is  carried  ou 
seasonably  the  street  will  be  built  before  there  is  an  econor 
demand  for  the  building. 

The  need  of  protecting  planned  streets  from  the  encroacl 
ments  of  land  owners  has  always  been  appreciated  in  this  coun- 
try and,  at  various  times  many  of  our  states  have  passed  laws 
for  that  purpose.     Everywhere  in  the  Tinted  States,  however, 
except  in  Pennsylvania,  these  laws  have  l.een  held  to  l>e  a  t; 
from  the  land  owner  of  a  right  of  use  in  his  land  and,  ther 
fore,  to  be  contrary  to  the  provision  of  our  Constitutn 

^S^B^SSSui 

of  the  rule;  see  pp.  3"  and  453,  n. 


PLANNING  THE  CITY  AS  A  WHOLE  31 

no  man  shall  be  deprived  of  property  for  a  public  use  without 
just  compensation.7  The  increased  interest  in  city  planning 
within  recent  years  in  this  country  has  revived  and  strength- 
ened the  demand  for  some  method  of  establishing  the  street 
plan  on  a  secure  basis,  as  is  done  abroad;  and  many  sugges- 
tions have  been  made  for  the  accomplishment  of  this  result  in 
a  constitutional  manner.  It  has  been  proposed  that  the  city, 
when  the  plan  is  adopted,  purchase  or  condemn  an  easement  or 
option  in  the  land,  to  acquire  it,  when  needed,  at  its  unim- 
proved value;  but  the  expense  of  the  purchase  of  this  right,  with 
the  proceedings  to  acquire  it,  added  to  the  expense  of  taking  the 
land,  later  on,  would  unquestionably  make  the  land  cost  the  city 
too  much,  and  laws  authorizing  cities  to  adopt  such  a  course 
would  remain  a  dead  letter.8  It  has  been  suggested  that  the 
land  owner,  intending  to  improve  land  in  the  bed  of  mapped 
streets,  should  be  required  to  give  the  city  six  months'  notice, 
within  which  to  acquire  the  land;  but  this,  instead  of  protect- 

7  See  report  just  cited  (Erection  of  Buildings  within  the  Lines  of 
Mapped  Streets,  Dr.  Robert  H.  Whitten,  November  20,  1917).  The  law 
is  settled  to  the  effect  as  stated  in  the  text  everywhere  in  the  United  States 
where  the  question  has  arisen,  except  in  Pennsylvania.  The  cases  are 
given  in  Lewis,  Eminent  Domain,  3d  ed.,  sec.  226;  Nichols,  Eminent 
Domain,  Sec.  101  (at  p.  282)  ;  See  also  Windsor  v.  Whitney,  95  Conn. 
357  (1920),  considered  on  page  36  of  this  work. 

Of  interest  in  this  connection  is  the  dictum  in  State  v.  Carragan, 
Collector,  36  New  Jersey  Law  Reports  52  (1872)  that  "If  the  improve- 
ments should  be  made  in  bad  faith,  with  intent  to  throw  an  undue 
burden  on  the  public,  another  element  would  enter  into  the  consideration 
of  the  question  which  might,  perhaps,  produce  a  different  result" ;  but 
see,  Matter  of  City  of  New  York  (Briggs  Avenue),  118  Appellate  Di- 
vision Reports  (N.  Y.)  224  (1907)  ;  and  notes  on  same,  36  L.  R.  A. 
N.  S.  273,  and  17  Annotated  Cases  1034. 

Lewis,  in  his  book  on  Eminent  Domain,  Callaghan  and  Co.,  Chicago, 
3d  ed.,  1909,  Sec.  226,  Note  23,  says,  in  explanation  of  the  Pennsylvania 
decisions : 

"Such  an  Act  was  held  valid  in  New  York  on  the  ground  that  it 
was  passed  before  there  was  any  limitation  in  the  Constitution  of  that 
State  upon  the  power  of  eminent  domain,  and  compensation  for  im- 
provements placed  within  the  lines  of  a  proposed  street  was  denied,  al- 
though the  street  was  not  actually  laid  out  until  seventeen  years  after 
the  map  was  made.  Matter  of  Furman  Street,  17  Wend,  649.  This 
case  was  followed  in  Pennsylvania  without  noticing  the  ground  on  which 
it  rested.  Forbes  Street,  70  Pa.  St.  125."  See  in  this  connection  People 
ex  rel  N.  Y.  C.  &  H.  R.  R.  R.  Co.  v.  Priest,  206  N.  Y.  274  at  288  (1912). 

'  There  is  such  a  law  in  Connecticut  for  the  planning  of  towns ;  Re- 
vised Stats.  1918,  Sec.  391-396.  There  are  also  laws  for  zoning  by 
eminent  domain ;  see  Tables  of  Statutes. 


32  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ing  the  city,  would  furnish  the  land  owner  altogether  too  easy 
a  method  of  forcing  the  city  to  buy  his  land  at  his  pleasure, 
instead  of  at  the  pleasure  of  the  city.9 

In  a  number  of  states  laws  exist  which  provide  that  the 
owner  of  land,  wishing  to  lay  out  streets  with  lots  abutting  on 
them  for  sale,  shall  submit  his  subdivision  to  the  city  for  ap- 
proval before  the  plan  shall  be  recorded ;  and  also  forbid  utili- 
ties in  streets  until  such  approval  is  obtained.10  The  private 
street,  laid  out  by  the  land  owner,  all  too  often  for  his  immedi- 
ate profit,  with  no  regard  for  the  interests  of  the  city  as  a 
whole  or  those  of  the  people  who  are  to  live  on  the  tract  in 
question,  while  by  no  means  the  only  offender  against  the  city 
plan,  is  probably  the  commonest  one ;  and  when  the  lots  on  such 
a  street  are  sold  to  innocent  purchasers  and  houses  built  on 
them,  the  city  is  practically  forced  to  accept  the  street  as  a  part 
of  its  public  system,  giving  up  its  own  plan  in  that  locality; 
the  only  alternative  seeming  to  be  to  allow  the  street  to  remain 
in  private  control,11  thus  continuing  one  evil  without  lessening 
the  others.  The  provision  for  approval  as  a  prerequisite  to 
record  is  effective ;  it  is  impossible  in  this  country  to  sell  land 
without  a  record  title.  The  provision  is  also  constitutional; 12 
record  being  not  a  right  but  a  privilege  which  the  law,  for  rea- 
sons of  public  policy,  may  withhold.18  Evidently  such  a  pro- 
vision can  be  used  to  the  best  advantage  only  in  connection  with 
an  accepted  city  plan,  as  otherwise  the  planning  of  any  given 
plot  would  not  be  related  to  the  plan  of  other  tracts  of  land  and 
of  the  city  as  a  whole. 

Useful  as  are  the  laws  providing  for  the  approval  of  the 

•Sec   the   report   on   the  Erection   of  Buildings  within   the  Lines   of 
Mapped  Streets  already  referred  to;  and  for  a  more  radical  sugg< 
see  "A  Survey  of  the  Legal  Status  of  a  Specific  City  in  relation  to  City 
PlnnniiiK"  by  Kdward  M.  Bassett,  in  the  Proceedings  of  the  Fifth  Con- 
ference on  City  Planning  (Chicago,  1913),  pp.  46  at  48. 
'l-'iT  precedents  sec  pp.  32,  578,  583,  587. 

M  Unquestionably   the   city   has   the   legal   right   to   condemn   the   land 
for  its  own  system  of  streets  regardless  of  tin-  existing  private  -• 
and  the  buildings  abutting  on  them;  but  it  would  be  seldom  indeed  that 
any  city  would  exercise  such  a  right. 

"Bauman  v.  Ross,  167  U.  S.  £48  (1897). 

"See  cases  cited  in  18  Corpus  Juris,  p.  247  (Sec.  186)  and  248,  note  65, 
(a);  also  State  v.  Register  of  lu«U  _•<•  Mum.  521  (1880);  Van  Husan 
v.  Hcamcs,  96  Mich.  504;  Contra,  State  v.  Moore,  7  Wash.  173  (1893). 


PLANNING  THE   CITY  AS  A  WHOLE  33 

subdivisions  of  owners  desiring  to  sell  land,  as  a  prerequisite 
to  record  of  the  deeds,  they  do  not  prevent  the  owner  who  does 
not  wish  to  sell  from  improving  his  land  in  such  ways  as  often 
practically  force  changes  in  important  features  of  the  plan,  and 
in  some  cases  their  entire  abandonment;  as,  for  instance,  by 
encroaching  upon  a  mapped  street,  or  building  a  factory  or  a 
row  of  costly  houses  entirely  across  it.14  In  order  that  the 
plan  may  be  adequately  guarded  its  main  features  must  be 
protected  by  the  police  power  of  the  state.  It  has  therefore 
been  suggested  that  an  amendment  to  our  state  constitutions  be 
urged  giving  cities  the  right  to  adopt  plans  binding  land  owners, 
as  in  Pennsylvania.  At  best,  such  amendments  could  be  passed 
only  after  a  long  struggle ;  and  it  is  to  be  feared  that  they  would 
be  held  by  the  Supreme  Court  of  the  United  States  (which  has 
not  as  yet  passed  on  the  question)  to  be  contrary  to  the  fed- 
eral Constitution.  It  is  true  that  with  proper  city  planning  a 
good  plan  will  be  made  for  undeveloped  territory  and  will  be 
carried  out  seasonably;  but  in  this  country  the  probability  of 
good  administration  is  not  regarded  as  a  sufficient  safeguard 
against  injustice  in  exceptional  cases,  as  it  is  abroad.  And 
there  are  many  cases,  especially  in  portions  of  the  city  already 
more  or  less  built  up,  where  injustice  might  be  done.  Take 
for  instance  a  lot,  all  or  an  undue  portion  of  which  lies  in  the 
bed  of  a  future  street.  The  owner  has  nothing  to  gain  by  the 
street;  and  if,  as  often  happens,  its  construction  is  delayed 
beyond  the  time  when  the  lot  might  with  profit  be  built  up, 
the  owner  for  many  years  must  pay  taxes  on  the  lot,  but  cannot 
get-any  return  on  it.  Again,  suppose  a  deep  lot  on  an  existing 
street  with  a  factory  on  the  front  portion  of  the  lot  and  a  pro- 
posed street  planned  to  occupy  its  rear  portion.  The  entire 
lot  would  hold  with  advantage  perhaps  two  additional  factory 
buildings.  If  the  owner  wishes  to  construct  one  such  building, 
he  can  put  it  in  the  middle  of  the  lot,  and  there  is  no  loss  to 
him  in  depriving  him  of  the  use  of  the  bed  of  the  mapped 
street;  but  if,  in  course  of  time,  he  needs  a  third  building,  the 
only  land  for  it  is  the  land  devoted  to  the  future  street;  and 

14  See  the   Report   on   the  Erection  of  Buildings  within  the  Lines   of 
Mapped  Streets  just  referred  to. 


34  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

it  is  unjust  to  deprive  him  of  the  only  use  he  can  make  of  that 
land  for  many  years.  It  is  no  answer  to  his  claim  of  damage 
that  when  the  rear  street  is  built  his  land  will  be  benefited,  for 
under  proper  laws  he  must  pay  for  that  benefit  when  it  comes. 
And  the  city  may  change  its  mind  and  never  build  the  street ;  in 
spite  of  the  fact  that  for  years  it  has  kept  it  on  the  map. 

A  New  Method  of  Protecting  the  Plan. — As  a  method 
under  the  police  power,  of  making  a  city  plan  of  streets  and 
perhaps  a  few  other  features  binding  upon  property  owners 
which,  it  is  submitted,  would  be  just  to  them  and  valid  under 
our  constitutions,  it  is  suggested  15  that  municipalities  shall  be 
authorized  by  state  law  to  adopt  plans  binding  upon  them  until 
amended  in  due  form.  If  a  land  owner  desires  to  locate  an 
improvement  in  the  bed  of  a  mapped  street  or  within  mapped 
building  lines  (or  perhaps  on  land  destined,  by  the  plan,  for  a 
small  park  or  playground,  or  the  site  of  a  public  building)  he 
shall  apply,  in  the  building  permit,  for  permission  to  locate  an 
improvement  contrary  to  the  provisions  of  the  city  plan;  and 
when,  ultimately,  the  land  is  condemned  he  shall  recover  no 
damages  for  the  improvement  if  it  is  so  located  without  per- 
mission. The  city,  through  its  building  department  or  other 
proper  authority,  shall  grant  this  permission  only  when  its  re- 
fusal will  unavoidably  do  the  land  owner  substantial  economic 
injury  and  in  this  connection  shall  take  into  consideration  the 
possible  uses  of  other  land  in  the  neighborhood  belonging  to  the 
same  owner  and  the  possibility,  in  whole  or  in  part,  of  changing 
the  improvement  or  its  location. 

From  the  decision  of  the  building  department  refusing  per- 
mission to  locate  contrary  to  the  city  plan,  there  shall  be  an 
appeal  to  a  board  of  appeals,  who  shall  have  the  power  to  grant 
the  permission  with  conditions  calculated  to  lessen  or  alto- 
gether to  avoid  the  expense  to  the  city  due  to  improvements 
when,  later,  the  city  condemns  the  land ;  no  appeal  to  the  courts 

"The  suggestion  was  first  made  by  the  author  at  the  session  of  the 
naj  Conference  on  City  Planning  held  at  Pittsburgh  in  1921  ;  at 
which  time  Edward  M.  Bassett,  Esq.,  suggested  valuable  improvements 
which,  with  his  permission,  are  here  adopted ;  see  the  Proceedings  of 
the  Conference,  and  an  article  by  the  author  in  the  National  Muni*  i><j/ 
Rnrirtv  for  July,  1921,  entitled  "Enforcing  the  City  Plan." 


PLANNING  THE   CITY  AS  A  WHOLE  35 

being  allowed  until  after  resort  to  the  board  of  appeals.  This 
provision  would  both  mitigate  most  if  not  all  the  hardship 
which  the  law  might  otherwise  cause  the  land  owner  in  special 
cases  and  make  the  law  less  vulnerable  before  the  courts.16  In 

"A  draft  of  a  statute  along  the  lines  suggested  in  the  text  was  drawn 
up  by  Mr.  Bassett,  and  is  given  below.  For  the  sake  of  definiteness  it 
was  made  as  an  amendment  to  the  New  York  Charter.  It  should  be 
noted  that  this  charter  provides  that  in  the  construction  of  all  the  fea- 
tures legally  a  part  of  the  city  map  the  city  shall  follow  that  map,  ex- 
cept as  amended  in  due  form.  For  a  reference  to  these  provisions,  see 
p.  154,  185  of  this  work. 

The  suggested  act  is  as  follows : — 

AN  ACT 

To  amend  the  Greater  New  York  charter  in  relation  to  the  official 
map  and  plan,  to  prevent  buildings  in  streets  shown  on  such  map  and 
plan,  and  to  empower  the  board  of  appeals  to  grant  building  permits  in 
certain  cases. 

The  People  of  the  State  of  New  York,  represented  in  Senate  and 
Assembly,  do  enact  as  follows : 

Sec.  i.  Chapter  VI  of  the  Greater  New  York  charter  is  hereby 
amended  by  adding  after  section  442  a  new  section  to  be  known  as 
section  4423,  as  follows : 

Sec.  4423.  Such  map  and  plan  is  established  to  conserve  and  pro- 
mote the  public  health,  safety  and  general  welfare.  Accordingly  for 
the  purpose  of  preserving  the  integrity  of  such  map  and  plan  no  permit 
shall  hereafter  be  issued  for  any  building  in  any  street  laid  out  in  such 
map  and  plan,  provided  however  that,  if  the  land  within  such  mapped 
street  is  not  yielding  a  fair  return  to  the  owner,  the  board  of  appeals 
shall  have  power  in  a  specific  case  to  grant  a  permit  for  a  building  or 
buildings  which  will  as  little  as  possible  increase  the  cost  of  opening 
such  street  or  tend  to  cause  a  change  of  such  map,  and  such  board  may 
impose  reasonable  requirements  as  a  condition  of  granting  such  permit, 
which  requirements  shall  inure  to  the  benefit  of  the  city.  Before  taking 
any  action  authorized  in  this  section  the  board  of  appeals  shall  give 
public  notice  and  hearing. 

Sec.  2.  Section  yi8d  of  Chapter  XIV-A  of  the  Greater  New  York 
charter  is  hereby  amended  so  that  it  will  read  as  follows : 

Board  of  Appeals.  Sec.  7i8d.  The  appointed  members  of  the  board 
of  standards  and  appeals  and  the  chief  of  the  uniformed  force  of  the 
fire  department,  exclusive  of  the  other  members,  shall  hear  and  decide 
appeals  from  and  review  any  rule,  regulation,  amendment  or  repeal 
thereof,  order,  requirement,  decision  or  determination  of  a  superin- 
tendent of  buildings  made  under  the  authority  of  title  two  of  chapter 
nine  of  this  act  or  of  any  ordinance  or  of  the  fire  commissioner  under 
the  authority  of  title  three  of  chapter  fifteen  of  this  act  or  of  any  ordi- 
nance, or  of  the  labor  law.  They  shall  also  hear  and  decide  all  matters 
referred  to  them  or  upon  which  they  are  required  to  pass  under  any 
resolution  of  the  board  of  estimate  and  apportionment  adopted  pursuant 
to  sections  two  hundred  and  forty-two-a  and  two  hundred  and  forty- 
two-b  of  this  chapter.  They  shall  also  hear  and  decide  applications  for 
permits  for  buildings  in  streets  laid  out  in  the  official  map  and  plan  of 
the  city  as  provided  in  section  4420  of  chapter  VI  hereof.  No  member 
of  the  board  shall  pass  upon  any  question  in  which  he  or  any  corpora- 
tion in  which  he  is  a  stockholder  or  security  holder  is  interested. 


36  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

both  these  respects  a  board  of  appeals  would  in  this  connection 
render  a  service  analogous  to  that  which  it  has  so  admirably 
performed  under  zoning  laws.17 

Hearings  on  appeals  shall  be  before  at  least  five  members  of  the 
board  of  appeals,  and  the  concurring  vote  of  five  members  of  the  board 
of  appeals  shall  be  necessary  to  a  decision. 

The  words  board  of  appeals  when  used  in  this  chapter  refer  to  the 
said  appointed  members  of  the  board  of  standards  and  appeals  and  the 
chief  of  the  uniformed  force  of  the  fire  department,  when  acting  under 
the  powers  conferred  by  this  section. 

NOTE: — New  matter  in  section  7i8d  is  in  italics. 

"  In  support  of  legislation  for  the  establishment  and  protection  of 
the  city  plan  under  the  police  power  the  late  case  of  Windsor  v.  Whitney 
(95  Conn.  357;  1920)  may  be  cited.  In  1917  the  State  of  Connecticut 
passed  an  act  (Special  Laws,  1917,  No.  133;  p.  827)  for  the  planning 
of  outlying  parts  of  the  town  of  Windsor,  in  the  outskirts  of  the  City 
of  Hartford.  The  act  provides  for  the  creation  of  a  planning  commis- 
si'>n  with  power  to  establish  a  street  and  building  line  plan  for  this 
territory;  gives  the  land  owner  an  appeal  to  the  courts  if  he  considers 
the  plan  for  his  land  unreasonable,  and  forbids  land  development,  the 
sale  of  lots  and  the  erection  of  buildings  not  in  conformity  with  the 
officially  adopted  or  sanctioned  plan.  No  compensation  for  the  estab- 
lishment of  the  plan  is  provided  for. 

In  his  brief  in  support  of  this  act  the  attorney  for  the  town  of  Wind- 
sor says: 

"We  anticipate  that  the  defendants  will  claim  that  a  man  has  a  right 
to  build  and  use  private  ways  on  his  own  land,  that  that  is  all  that  the 
present  scheme  amounts  to,  and  that  the  State  cannot  interfere  with  this 
right  without  compensation.  Without  denying  the  right  of  a  land  owner 
to  maintain  private  ways  on  his  own  land  which  do  not  affect  other  prop- 
erty, directly  •  r  indirectly,  we  shall  show  that  this  is  not  the  situation 
involved  in  the  present  case. 

"Section  ii  of  this  act  provides  that  the  provisions  of  the  act  shall 
not  apply  to  the  Windsor  Fire  District,  in  other  words,  to  the  village  of 
Windsor.  The  growth  of  the  City  of  Hartford  toward  the  North  is 
extending  into  the  southerly  part  of  the  Town  of  Windsor  and  land 
development  schemes  like  the  one  engineered  by  these  defendants  are  now 
in  progress  and  probably  will  be  more  numerous  in  the  immediate  future. 
The  present  act  is  intended  to  properly  provide  for  the  conditions  which 
prevail  in  the  outskirts  of  a  city. 

"The  complaint  states  that  the  defendants  are  endeavoring  to  sell  a 
large  number  of  building  lots.  The  two  parallel  streets  are  800  f« •«  • 
If  the  building  lots  are  50  feet  wide,  the  usual  width,  there  will  be  i'> 
building  lots  on  each  side  of  each  of  these  streets,  a  total  of  64.  In 
addition  there  will  I*  building  lots  on  the  cross  street.  It  is  obvious  that 
in  the  natural  course  of  events  there  will  be  a  large  number  of  h 
erect**!  on  this  tract  within  a  few  years  and  that  a  considerable  number 
of  people  will  live  in  them.  This  is  not  only  probable  but  is  the  result 
which  the  defend  mt*  contemplate  and  arc  trying  to  bring  about  It  i<; 
respectfully  submitted  that  this  enterprise  is  one  in  which  the  State  of 
Connection  h.,  late  interest. 

"If  within  the  next  few  years  this  tract  contains  numerous  dwellings 
•fd  a  '»le  population,  it  will  become  the  duty  of  the  State  of 

Connecticut  and  its  agent,  the  Town  of  Windsor,  to  provide  fire  pro- 


PLANNING  THE   CITY  AS   A   WHOLE  37 

Illustrations,  of  the  service  which  a  board  of  appeals  could 
render  in  the  administration  of  this  provision  of  the  planning 
law  are  numerous  and  varied ;  and  of  these  illustrations  I  will 
cite  three. 

tection  and  police  protection.  In  the  interest  of  safety  and  morality 
lights  must  be  provided.  In  the  interest  of  health  a  sewer  must  be  in- 
stalled. Water  must  be  furnished.  The  children  must  be  provided  with 
school  facilities.  In  caring  for  all  these  essentials  the  State  must  use 
streets.  We  all  know  from  experience  that  the  normal  result  of  such  an 
enterprise  is  that  the  town  sooner  or  later  takes  over  such  streets  as 
public  highways.  If  it  does,  grading,  curbing,  drainage,  etc.,  become 
necessary  and  expensive.  But  whether  these  streets  become  public  high- 
ways or  not,  the  above  public  duties  and  many  others  will  be  eventually 
thrown  on  the  Town  of  Windsor  if  the  project  of  the  defendants  becomes 
a  success. 

"We  think  further  that  the  State  and  its  agent,  the  town,  are  fairly 
entitled  to  take  into  consideration  the  relation  of  the  tract  in  question 
to  the  general  lay-out  of  highways  in  the  town,  both  those  already  exist- 
ing and  such  highways  as  the  future  is  likely  to  call  for  in  the  neighbor- 
hood. It  is  obvious  that  if  one  land  owner  lays  out  streets  according  to 
his  notions  and  the  adjoining  owner  adopts  an  entirely  different  scheme, 
when  the  town  eventually  takes  both  groups  of  streets,  the  performance 
of  its  public  functions  will  be  greatly  complicated.  Wide,  straight  streets 
are  not  merely  beautiful — they  are  the  best  streets  for  practical  purposes. 
It  is  certainly  not  unreasonable  that  the  town  should  have  some  control 
over  the  matter  in  advance. 

"It  may  be  contended  that  the  time  for  the  town  to  take  a  hand  in 
the  matter  is  when  the  necessity  for  actual  public  care  arises.  But  we 
respectfully  maintain  that  the  State  is  fairly  entitled  to  look  forward  to 
probable  conditions  contemplated  by  the  parties  in  interest  with  proper 
foresight  for  its  future  duties  and  that  this  is  supported  by  common 
sense  and  by  the  authorities  which  we  have  cited  above.  It  is  ridiculous 
to  'say  that  the  State  must  stand  by  and  watch  the  defendants  and  their 
vendees  build  up  a  considerable  community  and  then  step  in  and 
straighten  out  the  street  problems  at  greatly  increased  expense  to  both 
the  State  and  the  parties  then  concerned.  The  prudent  and  sensible  thing 
for  the  State  to  do  is  to  have  its  say  now.  This  is  what  the  present  act 
seeks  to  accomplish.  It  is  clear  from  the  above  citations  that  the  police 
power  of  the  State  would  enable  it  to  handle  the  situation  when  the 
community  has  once  come  into  existence  and  we  think  it  equally  clear 
that  the  police  power  of  the  State  is  broad  enough  to  enable  it  to  antici- 
pate the  future  conditions  indicated  by  the  situation." 

In  sustaining  the  Act,  the  Court  says : — 

"Unless  this  regulation  can  be  supported  as  a  legitimate  exercise  of 
the  police  power,  the  Act  must  fall.  A  town  commission  plan  such  as 
this  Act  contemplates  is  distinctly  for  the  public  welfare.  Its  theory  is 
to  lay  out  streets  when  and  where  the  public  need  them,  and  of  adequate 
width  to  meet  the  requirements  of  the  community  and  of  transportation. 
In  such  a  plan  each  street  will  be  properly  related  to  every  other  street. 
Building  lines  will  be  established  where  the  demands  of  the  public  re- 
quire. Adequate  space  for  light  and  air  will  be  given.  Such  a  plan  is 
wise  provision  for  the  future.  It  betters  the  health  and  safety  of  the 
community ;  it  betters  the  transportation  facilities ;  and  it  adds  to  the 
appearance  and  wholesomeness  of  the  place,  and  as  a  consequence  it 


38  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

If  a  land  owner  desires  to  erect  a  brick  structure  in  the 
bed  of  a  mapped  street,  the  board  of  appeals  could  offer  to 
authorize  a  wooden  building,  pointing  out  that  such  a  building 
could  be  amortized  in  a  given  number  of  years,  with  a  fair 
return  to  the  land  owner  on  the  value  of  his  land.  No  court 
could  hold  that  (in  the  absence  of  other  complications)  the  land 
owner  was  rightly  aggrieved  to  whom  such  an  offer  was  made, 
even  if  he  could  obtain  a  larger  amount  by  violating  the  city 
plan,  contrary  to  the  general  interest:  for  if  the  return  is  a 
fair  one  he  is  not  unjustly  deprived  of  his  property. 

If  a  building  were  proposed  a  part  of  which  only  would 
project  into  the  future  street,  the  board  of  appeals  could  offer 
to  consent  to  a  building  of  which  the  projecting  portion  was 
only  one  story  high ;  backing  up  the  proposal  by  plans  showing 
the  suitability  and  yield  of  such  a  building  in  such  a  location. 

reacts  upon  the  morals  and  spiritual  power  of  the  people  who  live  under 
such  surroundings.  The  demands  of  a  large  city  may  excuse  conges- 
tion, hut  in  a  small  city  or  a  country  town  there  is  no  excuse  for  such 
living  conditions.  But  unless  some  authority  controls  and  regulates  the 
land  development,  we  may  look  for  too  narrow  streets,  too  few  or  n  > 
building  lines,  and  buildings  erected,  unstable  in  character,  unsuitable  in 
material,  and  inappropriate  in  construction.  Our  large  communities  all 
have  their  examples  of  the  unregulated  layout  of  streets  and  buildin-,- 
lines  and  buildings ;  of  instances  of  land  development  so  as  to  yield  the 
last  penny  to  its  promoters  regardless  of  the  public  welfare:  of  com- 
munity eyesores;  of  streets  made  over,  whole  sections  changed,  because 
at  the  beginning  no  reasonable  provision  was  made  for  the  safety,  health 
or  welfare  of  the  community. 

"Such  an  Act  as  this  is  conceived  in  public  wisdom  and  serves  great 
public  ends.  Courts  will  be  reluctant  to  destroy  it  and  with  it  its  benefi- 
cent purposes "  95  Conn.  362-3. 

It  should  be  noted  that  there  is  a  material  difference  between  the 
Connecticut  statute  and  the  statutes  for  the  establishment  of  city  plans 
sustained  by  the  courts  of  Pennsylvania  and  held  invalid  in  all  the  other 
states  in  which  the  question  has  been  raised.  The  Connecticut  statute, 
unlike  the  others,  provides  for  a  modification  of  the  plan  to  suit  special 
circumstances  and  remove  special  hardships,  granting  the  land  owner 
feeling  himself  aggrieved  an  appeal  to  the  regular  courts  for  the  pur- 
pose; and  it  is  for  this  reason  that  the  Connecticut  judges,  in  the  case 
under  examination,  in  which  the  owner  did  not  avail  himself  of  this 
method  of  relief,  arc  justified  in  assuming  that  "the  regulations  as  to  the 
t  of  the  streets  and  building  lines,  and  as  to  the  issuance  of  huildinn 
permits,  arc  reasonable  for  that  section  and  location."  It  may  well  In- 
that,  under  Connecticut  law  and  procedure,  provisions  for  m»dit 
of  the  plan  by  appeal  to  the  regular  courts,  especially  in  admini-1 
an  act  which  applies  only  tn  outlying  territory,  would  work  well ;  when-a- 
under  acts  to  be  made  applicable  also  to  city  land,  provisions  for  a  board 
of  appeal,  more  or  less  as  suggested  in  the  draft  act  given  above,  would 
be  more  appropriate. 


PLANNING  THE  CITY  AS  A  WHOLE  39 

If  the  city  intended  to  build  the  street  within,  perhaps,  five 
years,  the  board  could  be  authorized,  with  the  consent  of  some 
proper  city  authority,  to  agree  with  the  land  owner  that  the  city 
would  build  it  within  that  time.  This  agreement  would  usually 
make  it  certain  that  the  location  of  the  building  with  relation 
to  the  future  street,  so  soon  to  be  built,  was  the  most  profitable 
one,  especially  if  the  building  was  to  be  expensive. 

A  provision,  under  the  police  power,  making  a  few  of  the 
essential  features  of  the  city  plan  binding  upon  the  land 
planned  is  essential  to  the  success  of  city  planning  in  this  coun- 
try. The  provision  here  suggested  would  seem  to  accomplish 
everything  which  is  secured  by  the  provisions,  for  the  same 
purpose,  of  foreign  laws,  by  methods  already  familiar  in  this 
country,  and  therefore  more  likely  to  win  the  approval  not  only 
of  city  planners,  but  of  our  courts. 

The  Control  of  City  Development. — The  purpose  of  city 
planning  is  the  attainment  of  unity  in  city  construction.  To 
that  end  the  power  to  establish  and  protect  a  city  plan  is  neces- 
sary but  not  sufficient.  In  addition  some  measure  of  power  to 
determine  the  order  and  time  of  development  of  outlying  land 
is  necessary.  In  this  country,  and  in  most  parts  of  the  British 
Empire,  the  land  owner  may  convert  his  agricultural  land  into 
prospective  building  lots  wherever  and  whenever  he  pleases. 
The  result  is  often  a  premature  subdivision  of  land,  with  a  re- 
sulting economic  waste,  and  always  an  undirected  city  growth. 

German  Methods  of  Control. — The  development  of  out- 
lying land  is  controlled,  to  a  considerable  extent,  in  some  of  the 
German  states  by  imposing  upon  it  zoning  regulations  allowing 
only  low,  detached  residences,  covering  a  small  percentage  of 
the  lot,  in  other  states  by  forbidding  all  subdivision  of  land 
and  construction  of  permanent  improvements  until  the  city 
decides  that  the  land  should  be  developed,  and  establishes  a 
plan  and  building  or  zone  regulations,  thus  fixing  the  direction 
and  character  of  city  growth. 

In  England,  the  English  speaking  colonies,  and  this  coun- 
try, vacant  building  land  abutting  on  more  or  less  improved 
streets,  with  many  if  not  all  the  city  utilities,  is  to  be  found  here 
and  there  throughout  the  city,  the  amount  of  it  increasing 


40  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

greatly  as  the  outlying  portions  of  the  city  are  reached,  and 
the  city  gradually  and  irregularly  fades  out  into  the  open  coun- 
try, or,  sometimes,  jumps  considerable  areas  in  its  progress. 
In  continental  European  cities  the  development  is  more  uni- 
form, with  fewer  vacant  lots,  especially  as  the  city's  outer  edge 
is  approached,  where  abruptly  the  city  ends  and  the  open  coun- 
try begins. 

In  Germany  this  tendency  toward  uniform  development  is 
strengthened  by  the  German  method  of  "city  extension,"  en- 
forced by  prohibition  of  improvements  in  advance  of  it ; 18  new 
streets  there  being  planned  and  constructed  only  in  a  narrow 
strip  of  land  immediately  beyond  the  solidly  built  existing  city, 
as  immediate  necessity  for  building  land  from  time  to  time 
arises,  building  lots  being  forbidden  elsewhere.  The  strips  of 
land  thus  improved  do  not  necessarily,  or  usually,  extend  around 
the  city,  but  only  in  the  directions  where  growth  is  considered 
most  advantageous.  It  should  be  noted  that  the  city  plan  for 
the  purposes  of  "city  extension,"  since  it  covers  only  areas  nec- 
essary for  immediate  use,  is  usually  supplemented  by  another 
plan  indicating  the  city's  proposed  lines  of  growth  for  many 
years  to  come. 

Our  "laissez  faire"  method  of  city  construction,  the  Ger- 
man orthodox  planner  objects  to,  first,  because  it  unnecessarily 
swells  the  expenses  of  administration,  such  as  police,  postal 
delivery,  etc.,  and  of  furnishing  the  utilities,  such  as  gas,  water 
and  transportation;  secondly,  because  it  increases  the  cost  of 
land  development  and  ultimately  land  prices  and  rents  by  adding 
to  them  interest  and  maintenance  charges  for  unused  and  partly 
used  improvements;  thirdly,  because  it  hastens  unduly  the 
turning  of  agricultural  land  into  building  lots  which  remain 
unused  for  long  periods,  thus  again  augmenting  land  prices 
and  rents.  Land  speculation,  however,  still  continued  in  Ger- 
many in  H)i4,  before  the  War,  and  many  German  economists 
thought  that  the  limitation  of  building  to  a  narrow  strip  of 
land  created  monopoly  values. 

It  has  been  pointed  out  that  the  vacant  lot  furnishes  light 
and  air  to  structures  on  neighboring  land,  and  tends  to  K 

"  There  are  other  causes  for  the  solidly  built  German  city ;  see  p.  jOO. 


PLANNING  THE  CITY  AS  A   WHOLE  41 

congestion.  A  more  uniform  development,  however,  may  be 
secured  by  limitations  on  the  height  and  area  of  structures,  by 
zones,  if  desired,  and  thus  light  and  air  and  relief  from  con- 
gestion obtained. 

A  Suggested  Canadian  Method  of  Controlling  City 
Development. — The  German  method  of  controlling  city  con- 
struction just  referred  to,  would  be  impossible  in  this  country 
not  only  because  it  would  be  held  to  be  a  taking  of  property 
rights  without  compensation,  but  because  it  would  be  considered 
unjust.  In  Canada  a  method  of  obtaining  in  a  measure  at 
least  the  advantages  of  the  German  system  without  its  disad- 
vantages, has  been  independently  worked  out.19  In  some  of 
the  Canadian  cities  land  booms,  now  partially  at  least  collapsed, 
have  unduly  stimulated  the  cutting  up  of  agricultural  land 
within  city  limits  into  building  lots.  Some  of  these  cities  are 
making  rules  20  allowing  these  owners  to  classify  this  land  as 

18  See  on  this  subject  an  article  by  Thomas  Adams  in  the  National 
Municipal  Review  for  March,  1919,  entitled  "Town  Planning  in  Relation 
to  Land  Taxation." 

"Typical  of  these  regulations  is  the  following: 

CITY  OF  EDMONTON 

Resolutions  passed  by  the  City  Council  at  a  special  meeting,  September 
29,  1919,  dealing  urilh  the  problem  of  assessment  and  taxation  on  out- 
lying stibvisions  in  the  City  of  Edmonton. 

1.  That  no  portion  of  the  City  be  excluded  from  the  present  limits  of 
the  City,  except  certain  portions  which  may  be  excluded  by  the  City  for 
topographical  or  engineering  reasons. 

2.  That  the  City  be  divided  into  an  inner  or  residential  area,  and  an 
outer  or  agricultural  area. 

3.  That  the  line  separating  and  defining  these  two  areas  be  fixed  by 
the  City  with  a  view  to  the  development  of  the  City  at  the  present,  day 
and   the   probable   development   in  the  near  future,  this  boundary  as   so 
denned  to  be  fixed  by  the   Utilities   Board  and   subject  to  change  only 
upon   recommendation  of  the   city   and  the   consent   of   the   Board. 

4.  No  new  plans  of  subdivision  to  be  allowed  in  the  outer  or  agricul- 
tural area,  except  in  cases  where  land  is  ripe  for  development  for  resi- 
dential  purposes,   when   it   shall   be  brought   into   the   inner   area  in   the 
manner  above  provided  before   being  subdivided,  the   idea  being  to  en- 
courage cancellation  of  existing  subdivisions  in  the  outer  area  by  allow- 
ing reduced  assessments,  so  soon  as  plans  are  cancelled. 

5.  No  utilities,  except  as  required  for  trunk  lines  or  other  engineering 
reasons  vo  be  extended  into  the  outer  area. 

6.  The  lands  in  the  outer  area  to  be  assessed  at  their  real  value  for 
agricultural,  horticultural  or  such  other  purpose  for  which  they  may  be 
used  provided  that   lands   actually  being  used   for  agricultural   purposes 
shall  not  be  assessed  at  an  amount  in  excess  of  Two  Hundred  Dollars 
($200)   per  acre  for  a  period  of  five  years. 


42  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

agricultural,  on  condition  that  they  cancel  all  existing  subdivi- 
sion and  agree,  as  long  as  this  classification  is  retained,  not  to 
make  any  new  subdivision.  In  return,  the  city  agrees  to  tax 
the  land  at  a  low  rate.  It  is  understood  that  no  city  improve- 
ments, except  such  as  are  appropriate  to  agricultural  land, 
shall  be  made  in  agricultural  areas.  When  the  owner  wishes  to 
obtain  a  classification  of  his  land  as  building  land,  he  must  at 
once  pay  an  increment  tax  of  fifty  per  cent  on  its  increased 
value  and  thereafter  is  liable  for  taxes  at  the  regular  rate.  It 
is  calculated  that  the  city  will  not  lose  in  taxes  more  than  it 
saves  in  interest  and  administration ;  and  that  the  present 
owners  of  the  land  and  the  final  owners  of  it  and  the  homes  on 
it,  will  be  greatly  benefited,  thus  again  benefiting  the  city.  Such 
an  arrangement  would  be  entirely  possible  in  this  country  in 
any  case  where  it  seemed  desirable;  for,  entered  into  voluntarily 
by  the  land  owner,  it  is  neither  unconstitutional,  under  our  legal 
system,  nor  unjust.21 

7.  That  a  reduction  of  not  more  than  forty  per  cent,  be  made  in  the 
mill  rate  for  lands  in  the  outer  area. 

8.  No  compromise  for  back  taxes,  but  an  extension  of  the  time  for 
payment  not  over  ten  years. 

9.  That  there  be  paid  to  the  City  in  respect  of  any  land  located  in 
the  suburban  area  that  may  hereafter  be  assessed  on  the  basis  of  assess- 
ment for  lands  in  an  unsubdivided  state  on  the  first  sale  thereof  after 
the   date  of  assessment  on   the   said   basis,  one-half   of   the   increase   in 
value,  if  any,  as  shown  by  the  sale  price  thereof,  and  the  average  of  the 
assessments  of  the  said  land  from  the  said  first  assessment  to  the  said 
sale  and  on  each  subsequent  sale  thereof  the  same  proportion  of  the  in- 
crease in  value,  if  any,  as  shown  by  the  sale  price  thereof  and  the  average 
of  the  assessments  since  the  preceding  sale,  until  the  said  land  shall  be 
brought  into  the  urban  area,  or  shall  be  assessed  on  the  same  basis  of 
assessment  as  lands  in  the  urban  area,  whichever  shall  first  happen. 

10.  That  there  be  a  penalty  or  a  wild  lands  tax  imposed  on  all  agri- 
cultural lands  in  the  outer  area  not  put  under  cultivation 

11.  That  the  Board  of  Public  Utility  Commissioners  be  asked  to  use 
their  powers  to  reduce  the  costs  of  cancelling  plans  of  subdivisions. 

*  More  or  less  similar  to  the  Edmonton,  Canada,  rules  is  the  system  of 
taxation  for  manv  years  in  vogue  in  Philadelphia.  In  that  city  land  is 
cd  as  rural,  suburban  and  urban,  rural  land  paying  one  li.ilf  and 
suburban  lands  three-quarters  the  full  urban  rate.  It  has  not  been  the 
practice  in  Philadelphia  to  make  any  improvements  in  the  rural  areas. 
In  many  cities,  as,  for  instance,  Hartford,  Connecticut,  certain  areas  arc, 
or  at  one  time  were,  taxed  as  agricultural.  Laws  are  not  uncommon 
separating  rural  land  fiom  cities  at  the  request  of  the  owners. 


PART  III 
PLANNING  THE  PUBLIC  FEATURES 

CHAPTER   I 
ACQUIRING  THE  LAND 

The  City's  Need  of  Land. — One  of  the  greatest  needs  of 
the  modern  city  is  land.  The  city  requires  land  for  its  many 
public  features,  such  as  streets,  parks  and  playgrounds,  docks, 
reservoirs,  sites  for  public  buildings,  and  many  miscellaneous 
uses.  These  features  are  essential  to  the  growth  and  prosperity 
of  the  city,  to  the  happiness  and  physical  and  moral  health  of 
its  inhabitants ;  and  they  all  require  land  for  their  construction. 
Probably  at  a  moderate  estimate  40  per  cent  of  the  total  area 
of  the  city  of  today  should  be  devoted  to  public  uses.  Unfor- 
tunately very  few  cities  have  anything  like  this  percentage  for 
such  uses.  It  seems  impossible  for  the  modern  city  to  obtain 
a  sufficient  supply  of  land  to  keep  up  with  its  ever  augmenting 
need  of  it;  and  the  more  the  supply  lags  behind  the  demand, 
the  higher  the  land  is  in  price  and  the  harder  it  is  to  catch  up. 

The  City's  Difficulties  in  Obtaining  Land. — In  its 
efforts  to  obtain  the  land  it  requires  the  city  encounters  many 
difficulties.  Usually  it  lacks  capital  for  the  constantly  increas- 
ing plant  and  equipment,  including  land,  necessary  today  for 
success  in  all  great  business  enterprises;  generally  its  methods 
of  obtaining  its  income  are  faulty,  and  less  productive  and 
more  burdensome  than  they  should  be ;  and  almost  invariably  it 
does  not  acquire  its  land  at  a  reasonable  cost. 

Effect  of  Legal  Restrictions. — It  is  a  well-known  fact 
that  public  improvements  cost  more  than  similar  private  enter- 

43 


44  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

prises.  There  are  many  causes  for  this.  Public  officials  are 
sometimes  less  honest  than  private  administrators,  or  less 
capable,  or  less  devoted.1  Invariably,  however,  the  conduct  of 
public  business  is  hampered  by  legal  restrictions  from  which 
private  affairs  are  free.  This  is  especially  the  case  with  the 
purchase  of  land. 

Price  Governed  by  Cost  in  Condemnation  Proceedings. 
— A  city  has  the  legal  right  to  obtain  land  by  agreement  with 
the  owner ;  but  in  this  country  and  in  England  land  is  acquired 
only  for  a  use  specifically  stated  at  the  time  in  accordance  with 
plans  announced  in  advance.  The  owner,  therefore,  knows  that 
his  land  is  essential  to  the  city  and  could  usually  extort  an 
extravagant  price  for  it,  but  for  the  fact  that  the  city,  under 
eminent  domain,  can  take  it  without  his  consent.  For  this 
reason  the  cost  of  land  to  a  municipality  is  its  cost  as  obtained 
under  the  power  of  eminent  domain ;  and  it  is  only  in  so  far  as 
that  power  is  suitable  for  the  purpose  that  the  city  can  obtain 
land  at  a  reasonable  price  and,  therefore,  in  a  sufficient  quantity 
for  its  needs. 

Legal  restrictions  upon  the  exercise  by  a  public  body  of  a 
power  like  eminent  domain  are  an  expense  to  the  public  in  two 
ways: — they  decrease  the  power  of  the  city  to  act  effectively, 
and  they  increase  the  number  of  required  formalities  with  their 
attendant  delays  and  expenses.  There  is,  however,  a  necessity 
for  a  measure  of  such  restriction.  A  municipality,  for  instance, 
should  be  required  to  give  the  public  due  notice  of  its  plans, 
and  time  to  examine  them,  so  that  they  may  more  surely  con- 
form to  public  wishes.  The  individual  also  needs  protection 
in  his  private  interests  against  the  arbitrary  use  of  governmen- 
tal power.  Restrictions  on  this  and  similar  powers  should, 
therefore,  be  imposed,  but  they  should  be  examined  and 
analyzed  with  great  care  in  order  that  only  those  which  are 
useful  may  be  retained  and  that  these  may  be  made  as  simple 
as  is  consistent  with  the  fulfilment  of  their  purpose. 

*Lawson  Purdy,  Esq.,  for  many  years  President  of  the  Board  of 
Taxes  and  Assessments  of  the  City  of  New  York,  has  said,  however,  "In 
my  opinion  public  officials  arc  usually  mors  honest  than  private  adminis- 
trators, and  more  devoted,  hut  often  less  capable." 


ACQUIRING  THE  LAND  45 

Duplication  of  Constitutional  Limitations. — Through- 
out the  civilized  world  the  power  of  eminent  domain  is  very 
properly  subject  to  the  limitation  that  it  shall  be  exercised  only 
for  the  public  advantage,  on  payment  to  the  owner  of  just  com- 
pensation. The  power  of  taking  private  property  without  the 
consent  of  the  owner  is  one  from  the  arbitrary  use  of  which 
the  individual  citizen  should  be  protected.  In  other  countries 
property,  in  common  with  life  and  liberty,  seem  to  be  sufficiently 
safeguarded  by  statute,  or  at  most  a  constitutional  provision, 
interpreted  by  the  legislature;  but  in  this  country  these  rights 
are  guaranteed  by  both  state  2  and  national  constitutions,  con- 
strued and  upheld  by  the  state  and  national  courts.  This  dupli- 
cation is  easy  to  explain  historically.  The  so-called  bill  of 
rights,  containing  these  guaranties,  was  a  valued  part  of  the 
state  constitutions  long  before  the  creation  of  the  national 
government.  The  federal  constitution  has  always  defended 
the  citizen  against  federal  oppression,  but  it  was  not  until  the 
fourteenth  amendment  was  passed  in  1868,  as  a  result  of  the 
Civil  War,  that  the  United  States,  to  any  extent,  attempted  to 
protect  the  citizen  from  his  own  state.  Meanwhile,  the  state 
bill  of  rights  had  become  sacred  in  popular  estimation,  and  in 
none  of  the  many  revisions  of  state  constitutions  has  it  been 
omitted. 

.  Time-honored  as  it  is,  there  is  nevertheless  reason  to  doubt 
whether  there  is  sufficient  cause  for  the  continuance  of  this 
duplication,  often  enabling  the  litigant  to  appeal  first  to  state 
and  then  to  national  courts  for  relief  and  delay.  As  passed  on 
by  the  Supreme  Court  of  the  United  States,  it  is  true  that  these 
provisions  are  more  favorable  to  modern  social  reforms  than 


*  From  some  of  the  early  statutes  and  decisions  with  regard  to  the 
taking  of  land  for  roads  in  a  few  of  our  states  it  might  seem  that 
there  were  exceptions  to  this  rule.  In  these  states,  in  early  times,  it 
was  customary  to  give  with  every  grant  of  land,  a  certain  excess  to  pro- 
vide for  public  roads.  In  these  cases,  therefore,  it  was  not  a  taking 
without  compensation  to  require  the  grantees  to  surrender  the  land  for 
roads  without  payment,  and  the  decisions  allowing  such  a  practice  are 
not  contrary  to  the  accepted  doctrine.  The  opinions  do  not  in  these  cases 
always  make  this  fact  clear.  For  references  to  the  statutes  and  the  cases 
under  them  see  Lewis,  Eminent  Domain  (3d  ed.),  Sec.  674,  Nichols, 
Eminent  Domain  (2d  ed.),  Sec.  204. 


46  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

when  construed  by  most  of  the  state  courts.3    Few,  however, 
will  deny  that  every  essential  right  of  the  individual  is  pro 
tected  by  the  United  States  Courts;  and  the  abolition  of 
bills  of  rights  and  similar  guaranties  in  the  state  constitution 
would  certainly  simplify  procedure  and  lessen  delay  an 

"The  national  constitution  provides,  in  effect,4  that  private 
property  shall  be  taken  by  authority  of  the  United  States  or  of 
any  state  only  for  public  use,  on  payment  of  just  compensatu 
Not  content  with  this  amount  of  protection  to  the  private  prop- 
erty of  their  citizens,  or  even  with  inserting  a  like  protection  n 
their  own  constitutions,  many  states  have  provided  additiona 
safeguards.    Thus  in  some  states  compensation  is  required  by 
the  constitution    for   property   which,   although   not   actua  ly 
taken,  is  "damaged,"  "injured,"  or  "injuriously  affected 
authority  of  the  state,  and  in  some  states  there  are  statutes 
the  same  effect.    This,  as  will  appear  in  the  chapter  with  rel 
tion  to  street  construction,5  is  no  more  than  just.    Some  state 
require  that  in  all  cases  or  in  all  except  where  the  state  or  « 
municipal  corporation  is  the  taker,  the  compensation  shall 
paid,  or  secured,  before"  the  property  is  taken.      This,  in  any 
event  where  a  private  individual  or  corporation  is  the  taker,  i: 
a  proper  protection  of  the  property  owner.     To  some  ex 
decisions  under  the  simpler  provisions  supply  the  prote 
which  these  additional  clauses  expressly  grant.8 

Just  Compensation.— The  provision  in  the  national 
the  state  constitutions  that  the  private  owner  shall  be  paid  a 
"just  compensation"  for  his  property  has  occasioned  much  c< 
troversy.    In  the  various  states  this  clause,  in  this  simple 
has  been  interpreted  by  the  courts  in  various  ways, 
states  there  are  additional  constitutional  provisions  on  the  su 
ject ;  in  others  there  are  more  or  less  similar  statutes. 

•'jftAJS^l*  amendment)  that  no  state  shall  deprive  any  person 
of  property  without  <h><  -f  law;  and  the  cases  hold  that 

without   just  compensation  is  due  process. 

•l£  Lew's,  Kmintnt  D*~i*   (3d  ed.),  Ch.  VIII.     *£ 

held  that  the  compensation  must  be  in  money;   Nichols, 
Domain,  (zd  ed.),  sec  ~'u5 


ACQUIRING  THE  LAND  47 

additional  constitutional  and  statutory  provisions,  in  their  turn, 
have  been  passed  upon  and  interpreted  by  the  courts.  What  is 
the  result  in  the  different  states  to  the  property-owner  and  the 
public  ? 

Taking  Entire  Tract. — Where  the  entire  tract  or  parcel 
of  land  of  a  given  owner  is  taken,  the  question  of  what  con- 
stitutes a  just  compensation  is  comparatively  simple.  Univer- 
sally in  this  country  it  is  held  to  be  the  fair  market  value  of  the 
land  and  whatever  improvements  there  are  on  it.  In  some 
countries  a  percentage  is  added  as  compensation  for  the  fact 
that  the  taking  is  compulsory.7  In  this  country  such  is  not  in 
theory  the  case,  although  in  fact  juries  often  increase  awards 
on  this  account.  The  subdivision  of  the  title  also  may  increase 
the  amount  which  must  be  paid  for  the  land,  especially  where, 
as  in  England,  long  leases  are  common,  and  the  profits  and 
good  will  of  the  business  conducted  on  the  leased  premises,  are 
evidence  of  the  value  of  the  lease.8  It  is  not  the  land,  but  the 
interest  of  the  various  owners  in  the  land  which,  in  most  juris- 
dictions, the  state  takes ;  9  and  evidently  the  sum  of  the  values 
of  these  interests  may  exceed  the  value  of  -the  land  itself.  In 
this  country,  where  long  leases  are  rare,  and  profits  and  good 
will  are  not  evidence  of  their  value,  subdivision  is  seldom  a 
serious  matter.  It  remains  substantially  true,  therefore,  that 
where  an  entire  tract  of  land  is  condemned,  the  amount  which 
the  state  must  pay  for  it  is  the  amount  of  its  improved  value. 

In  calculating  the  value  of  an  entire  tract  the  increase  due 
to  the  improvement  for  which  it  is  condemned  is  not  taken  into 
account;  for  it  is  not  a  part  of  the  value  of  which  the  owner 
is  deprived,  but  a  gain  produced  at  the  expense  of  the  maker 
of  the  improvement  for  which  he  should  not  be  compelled  to 

1  This,  known  as  "Compensation  for  Disturbance,"  was  formerly  com- 
mon in  England.  See  Cripps,  Law  of  Compensation  (4th  ed.,  London, 
1900^,  p.  103;  Ministry  of  Reconstruction,  Report  of  Committee  on  Ac- 
quisition and  Valuation  of  Land  for  Public  Purposes,  1918,  parts  i  and 
2.  In  condemnation  by  public  bodies  it  is  no  longer  the  practice ;  Acquisi- 
tion of  Land  (Assessment  of  Compensation)  Act,  1919.  It  is  not  the  law 
or  practice  in  Canada;  K.  v.  MacPherson,  20  Dominion  Law  Reports,  988 

(1914). 

"Ibid. 

*  This  is  the  law  in  England,  and  considered  the  better  law  in  this 
country;  Nichols,  Eminent  Domain  (2d  ed.),  Sec.  118. 


48  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

pay  twice.  Sometimes,  however,  this  increase  is  brought  indi- 
rectly to  the  attention  of  the  jury;  for  unquestionably  the  value 
of  the  property  must  be  based  not  alone  on  its  present  use,  but 
on  its  suitability  for  any  use,  including,  of  course,  that  for 
which  it  is  actually  taken.  This  is  one  reason  why  awards  are 
high.  Indeed,  there  is  a  very  general  feeling  and  belief  that  the 
public  usually  pays  too  much  for  the  land  it  condemns.  Many 
suggestions  for  fixing  rules  or  standards  for  the  price  of  the 
land  in  condemnation  proceedings  have  been  made,  few  if  any 
of  which  seem  likely  to  secure  a  fair  valuation. 

Taking  Part  of  Tract. — It  is  where  a  part  of  the  tract  of 
an  owner  is  taken  for  a  public  improvement  that  the  differences 
in  the  rules  determining  what  constitutes  just  compensation  are 
most  numerous  and  acute.  All  are  agreed  that,  in  addition  to 
the  value  of  the  part  taken,  the  owner  shall  be  credited  with  the 
damage,  if  any,  which  the  improvement  causes  to  the  rest  of 
his  tract.  Should  he  not  also  be  debited  with  the  benefit  due 
to  it  from  the  same  cause?  If  not,  will  he  not  receive  from 
the  public  more  than  is  due  him,  and  a  public  improvement  to 
that  extent  be  made  unduly  expensive  ?  In  so  far  as  the  bene- 
fits are  general  there  is  no  sufficient  reason  why  he  should  be 
compelled  to  pay  when  the  others  are  not,  no  injustice  in  taxing 
all  the  land  owners  for  this  element  in  the  improvement  by 
which  all  gain.  To  the  extent,  however,  that  the  benefits  which 
he  receives  are  special  to  him,  it  seems  manifestly  just  and 
expedient  that  the  value  of  these  benefits  should  be  a  charge 
against  him  in  condemnation,  as  the  assessment  of  local  benefits 
makes  them  such  in  taxation.10  This,  however,  is  not  the  pre- 
vailing rule,  although,  with  the  spread  of  local  benefit  taxation, 
it  is  becoming  more  general.11 

10  With  regard  to  local  benefit  taxation  see  p.  363,  fT. 

11  In   England,  neither  the  debit  of  the  value  of  the  improvement,  in 
condemnation  proceedings,  nor  benefit  taxation,  are  common;  hut  both  are 
increasing;  and  both  are  the  rule  in  Canada  and  Australia.     See  Cripps, 
Compensation,  p.  96,  and  the  Report  of  the  Commission  on  Acquisition 
and  I'aluation  of  Land  for  Public  Purposes,  already  cited.     For  a  state- 
ment of  the  law  in  the  various  states  in  this  country  with  references  to 
the  constitutional  provisions,   statutes  and  decisions   see  Lewis,  Eminent 
Domain    (3d   ed.),   sees.   687-693;    Nichols,    Eminent   Domain    (2d    ed.), 
Ch.    XVI.     Lewis    (sec.   687)    summarises    the   law    in   this   country   as 
follows: 


ACQUIRING  THE  LAND  49 

Importance  of  Procedure. — The  property  owner,  if  he 
is  to  be  protected  in  his  rights,  must  be  guaranteed  not  only  a 
just  compensation  for  his  land  but  a  reasonable  opportunity  to 
obtain  this  compensation.  Substantive  rights  without  adequate 

"THE  QUESTION  OF  BENEFITS 

"While  the  authorities  are  agreed  that,  where  part  of  a  tract  is  taken, 
just  compensation  includes  not  only  the  value  of  that  which  is  taken,  but 
damages,  if  any,  to  the  remainder,  there  is  great  diversity  of  opinion  as 
to  the  right  to  take  into  consideration  the  benefits  which  may  accrue  to 
the  remainder  by  reason  of  the  appropriation  of  a  part  to  public  use.  In 
some  States  the  consideration  of  benefits  is  prohibited  by  the  constitution. 
Sometimes  the  statute  conferring  authority  to  condemn  prohibits  any 
deduction  for  benefits  in  estimating  the  compensation  or  damages.  In 
the  absence  of  any  such  constitutional  or  statutory  provisions,  it  becomes 
a  question  of  construction  as  to  the  meaning  of  the  phrase  'just  compen- 
sation' in  the  constitution.  The  decisions  may  be  divided  into  five  classes, 
according  as  they  maintain  one  or  the  other  of  the  following  propositions : 

"First.     Benefits  cannot  be  considered  at  all. 

"Second.  Special  benefits  may  be  set  off  against  damages  to  the  re- 
mainder, but  not  against  the  value  of  the  part  taken. 

"Third.  Benefits,  whether  general  or  special,  may  be  set  off  as  in  the 
last  proposition. 

"Fourth.  Special  benefits  may  be  set  off  against  both  damages  to  the 
remainder  or  the  value  of  the  part  taken. 

"Fifth.  Both  general  and  special  benefits  may  be  set  off  as  in  the  last 
proposition. 

"It  will  be  observed  that  these  propositions  pass  from  one  extreme  to 
the  other." 

The  fourth  result  seems  to  be  the  correct  one.  The  arguments  for  it 
are  convincingly  stated  in  Lewis,  sec.  693,  as  follows : 

"CONCLUSION  AS  TO  THE  QUESTIONS  OF  BENEFITS 

"The  law  in  regard  to  benefits  is  now  pretty  well  settled  in  every 
State,  either  by  the  decisions  of  its  courts,  or  by  its  statutes,  or  its  con- 
stitution. While  different  and  conflicting  rules  prevail  in  the  different 
States  under  precisely  the  same  constitutional  provisions,  it  is  evident 
that  there  can  be  but  one  absolutely  correct  rule.  In  taking  private  prop- 
erty for  public  use  the  State  acts  rightfully  and  not  as  a  wrong  doer.  It 
guarantees  just  compensation,  and  nothing  more.  In  arriving  at  what 
is  just  compensation  the  matter  is  to  be  viewed  in  the  same  light  as 
though  the  State  had  bargained  with  the  owner  for  a  portion  of  his  land 
and  had  agreed  to  make  him  just  compensation  therefor.  It  is  self-evi- 
dent that,  where  a  part  of  a  tract  is  taken,  the  just  compensation  cannot, 
be  determined  without  considering  the  manner  in  which  the  part  is  taken, 
the  purpose  for  which  it  is  taken,  and  the  effect  of  the  taking  upon  tint 
which  remains.  All  the  authorities  concede  this  so  far  as  damages  ti 
the  remainder  are  concerned,  and  the  justice  of  so  doing  may  be  taken 
for  granted.  But  what  justice  is  there  in  considering  the  effect  in  so  f'M- 
only  as  it  produces  damage?  If  a  railroad  is  constructed  through  a  farm 
and  drains  a  valuable  spring  whereby  the  remainder  is  depreciated  five 
hundred  dollars,  it  is  conceded  that  just  compensation  must  include  this 
five  hundred  dollars.  But  if,  instead  of  draining  a  valuable  spring,  it 
drains  a  marshy  tract  so  as  to  make  it  worth  five  hundred  dollars  more 
for  actual  use,  the  same  sense  of  justice  requires  that  this  five  hundred 
dollars  of  benefits  should  be  considered." 


50  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

means  of  defending  them  are  of  no  value.  This  fact  our  con- 
stitutions recognize.  Under  the  fourteenth  amendment  to  the 
Constitution  of  the  United  States,  "no  state  shall  .  .  .  deprive 
any  person  of  ...  property  without  due  process  of  law."  A 
more  or  less  similar  provision  is  also  contained  in  the  constitu- 
tions of  most  of  the  states.  In  eminent  domain  this  clause  has 
been  held  to  affect  the  substantive  rights  of  the  property  own- 
er, and  due  process  must  include  provisions  for  the  payment  of 
just  compensation.  The  main  purpose  of  the  clause,  however, 
is  to  regulate  procedure.  It  guarantees  the  property  owner  a 
method  of  obtaining  his  compensation  calculated  to  obtain  jus- 
tice and  in  accordance  with  the  spirit  of  our  institutions  and 
law,  as  shown  in  our  history.  The  clause  does  not  prescribe 
any  particular  procedure,  but,  on  the  contrary,  is  satisfied  by  a 
great  variety  of  methods.  There  are,  however,  certain  requi- 
sites which  are  essential.  The  courts  have  held  that  there  must 
be  provisions  for  ascertaining  fairly  the  amount  of  compensa- 
tion, for  reasonable  notice  and  for  a  hearing  of  those  interested. 
Any  procedure  which  fulfills  these  requisites  is  due  process 
under  these  constitutional  guaranties. 

There  has  been  a  growing  feeling  of  late  that  our 
condemnation  procedure  is  not  well  suited  to  the  attain- 
ment of  its  purpose.  Frederick  Law  Olmsted,  the  well-known 
landscape  architect  and  city  planner,  said  a  few  years 
ago  on  this  subject 12 — and  there  has  been  no  considerable 
change  in  law  or  practice  since — that  he  had  discovered  an 

"astonishing  variation  in  the  practical  efficiency  of  methods  actually 
employed  and  prescribed  by  law  or  legal  custom  in  different  parts 
of  the  United  States  in  acquiring  land  for  public  purposes,  in  dis- 
tributing the  cost  of  public  improvements,  and  in  other  proceedings 
•  •^cntial  to  the  proper  shaping  of  our  growing  cities  to.  the  needs 
of  their  inhabitants.  Mere  variation  in  method  would  be  of  little 
more  than  academic  interest  in  itself,  but  variations  that  result  in 
obstructing  the  path  of  progress  in  one  community  and  clearing  it  in 
another  are  of  large  practical  importance.  The  extent  and  signifi- 
cance of  these  practical  variations  have  impressed  themselves  more 
and  more  strongly  on  the  writer  in  the  course  of  an  extended  prac- 

"In  his  Introduction  to  Carrying  <ntt  the  City  Plan,  by  Flavel  Shurt- 
Icff,  Survey  Associates,  Inc.,  New  York,   1914. 


ACQUIRING  THE  LAND  51 

tice  as  a  landscape  architect,  especially  in  connection  with  the  design 
and  execution  of  such  municipal  improvements  as  parks,  playgrounds, 
public  squares,  parkways,  streets,  the  placing  of  public  buildings  and 
the  improvement  of  their  grounds.  Even  more  notable  than  the  varia- 
tion in  method  and  in  relative  efficiency  has  been  the  close  preoccupa- 
tion of  public  officials,  especially  in  the  city  law  departments,  with 
the  constantly  recurring  problem  of  finding  the  way  of  least  resistance 
for  navigating  a  specific  improvement  through  the  maze  of  obstacles 
imposed  by  the  existing  local  legal  situation,  accompanied  by  an  almost 
fatalistic  acceptance  of  these  obstacles  as  a  permanent  condition. 
There  has  been  evident  in  most  cities  a  very  limited  acquaintance 
with  conditions  and  methods  to  be  found  elsewhere,  and  a  general 
lack  of  strong  constructive  effort  for  the  improvement  of  the  local 
conditions  and  methods  on  the  basis  of  general  experience.  Of  late 
years,  however,  there  has  been  a  growing  tendency  to  break  away 
from  this  indifference  and  to  face  these  problems  in  a  larger  spirit." 
*  *  *  "Feeling  the  importance,"  Mr.  Olmsted  goes  on  to  say, 
"of  stimulating  and  assisting  such  constructive  local  effort  by  calling 
attention  to  the  more  important  of  the  variations  in  actual  use  [he] 
urged  the  Russell  Sage  Foundation  ...  to  provide  the  funds  for 
making  a  systematic  survey  of  the  field." 

The  result  was  that  an  investigation  was  made  by  the  secre- 
tary of  the  National  Conference  on  City  Planning,  which  is  a 
necessary  first  step  in  a  reform  of  great  importance  to  the  cause 
of  city  planning  and  efficient  and  economical  city  government  in 
this  country.  On  the  subject  of  procedure  the  results  of  that 
investigation,  which  are  here  briefly  summarized,  are  peculiarly 
valuable.13 

Survey  of  Procedure  in  United  States. — Procedure  in 
the  condemnation  of  land  may  be  considered  under  two  heads : 
— provisions  with  regard  to  notice  and  hearing  in  condemna- 
tion cases  and  provisions  with  relation  to  the  tribunal  for  the 
decision  of  these  cases.  The  hearings  are  either  in  initial  pro- 
ceedings or  on  appeal. 


M  In  spite  of  some  changes  in  the  law  and  practice  cited,  it  remains 
as  a  whole  typical  of  the  condition  existing  at  the  present  time;  and  it 
is  reproduced  here  for  the  reason  that  nothing  later  at  all  comparable  to 
it  exists.  See,  however,  Massachusetts  Documents,  House,  No.  1851 
(Feb.,  1915)  and  1750  (1916);  Illinois  Constitutional  Convention  Bulle- 
tin No.  7  (1918)  and  the  valuable  English  report  on  Acquisition  and 
Valuation  of  Land  for  Public  Purposes,  already  mentioned. 


52  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Notice  and  Hearing.— In  initial  proceedings  Milwaukee 
furnished  an  example  of  delays  prior  to  the  beginning  of  the 
ascertainment  of  the  amount  of  compensation  which  is  by  no 
means  unique.  The  following14  were  the  docket  entries  in  a 
normal  street  opening  case  in  that  city  :— 

"Sept.  30,   1907,  first  resolution  of  common  council  referred  to 

committee. 

Oct.  14,  1907,  first  resolution  adopted  by  common  council. 

Oct.  15,  1907,  first  resolution  approved  by  mayor. 

jS.  1907,  second  resolution  adopted  and  approved. 

Feb.  17,  1908,  third  resolution  adopted  and  approved. 

May  7,'  1908,  proof  of  publication  and  service  of  resolution  on 
land  owners  returned  to  court. 

May  16,  1908,  list  of  owners  filed. 

May  23,  1908,  jury  sworn  and  premises  viewed. 

June  5,  1908,  jury  hears  evidence  and  returns  a  verdict  that  the 
opening  is  a  public  necessity. 

July  2,  1908,  papers  in  the  case  go  to  the  board  of  ^  public  works 
for  award  of  damages  after  the  hearing  of  evidence." 

In  Minneapolis  the   "first   hearing  on   the   question   of   damage; 
under  park  procedure  ...  is  held  before   five  appraisers  appomte. 
bv  the  park  commissioners.    The  second  hearing  is  before  the  park 
commission.     At  the  second  hearing  the  park  commissioners  consider 
objections  to  the  appraisers'  report  on  the  ground  either  of  irregi 
larity  in  the  proceedings  or  of  inadequacy  of  the  award  of  damages. 
The'third  hearing  is  before  the  court  on  the  question  of  irregularity 
of  the  proceedings.     The  fourth  hearing  is  before  three  appraisers 
appointed  by  the  court  to  review  the  evidence  and  bring  in  a  report  on 
the  question  of  damages.     If  this  appraisal   is  un^itistactory   Oter 
may  be  even  a  fifth  hearing  before  three  new  appraisers,  but 
practice  of  the  present  counsel  for  the  board  of  park  commissioners, 
which  has  extended  over  several  years,  there  has-been  only  one  in- 
stance of  the  court's  granting  this  fifth  hearing." 

These  are  by  no  means  extreme  or  unusual  instances.  In 
Los  Angeles  and  Denver  these  proceedings  ordinarily  con- 
sumed a  year,  and  in  Chicago,  three  years.  In  ( )re.<nm,  how- 
ever, the  city  normally  came  into  possession  of  land  taken 
under  eminent  domain  in  two  months  from  the  filing  of  the 
petition. 

The  Tribunal.— The  next  question  is  that  of  the  tribunal 

"Taken  from  Carrying  out  the  City  Plan,  already  cited,  p.  26.  ff. 


ACQUIRING  THE  LAND  53 

before  which  the  amount  of  damages  for  the  taking  of  the 
land  is  fixed.  In  a  few  states  the  constitution  or  a  statute 
specifically  gives  the  land  owner  the  right  to  a  jury  trial  in 
condemnation  proceedings.  As  a  rule,  however,  the  right  to  a 
jury  is  granted  in  general  terms,  which  the  courts  have  inter- 
preted as  guaranteeing  that  right  only  in  those  cases  where  it 
was  given  at  common  law,  and  not  in  cases  in  which,  like  con- 
demnation, it  did  not  at  common  law  exist.  In  all  the  states, 
therefore,  except  those  in  which  the  land  owner  is  specificall}' 
granted  the  privilege  of  claiming  a  jury  trial,  a  different  tri- 
bunal may  be  created  for  the  purpose.  In  the  opinion  of 
students  of  the  subject  a  common  law  jury  is  not  fitted  to  try 
condemnation  cases,  since  it  is  apt  to  lack  the  knowledge  of  real 
estate  values  and  the  experience  in  handling  technical  evidence 
which  are  important  in  the  tribunal  which  is  to  ascertain  the 
compensation  in  land  damage  cases. 

The  tribunals  provided  in  this  country  for  the  fixing  of 
the  amount  of  compensation  in  condemnation  proceedings  may 
be  divided  into  three  classes:  (i)  a  special  board  of  three 
commissioners,  whose  valuation  is  subject  to  review  by  the 
court  with  jury,  (2)  a  court  with  jury  having  original  jur- 
isdiction, (3)  a  court  without  jury  having  original  or  ap- 
pellate jurisdiction.  The  varieties  of  tribunal  in  each  of 
these  classes  are  great,  and  the  differences  between  them  and 
between  the  results  they  obtain  are  considerable.  Under  each 
one  of  these  systems  complaints  of  delay,  incompetence,  dis- 
honesty, and  useless  and  excessive  expense  are  numerous  and 
bitter.  In  New  York  State,  where  the  special  board  was  the 
rule,  a  constitutional  amendment 15  was  passed  to  allow  those 
communities  wishing  it  to  introduce  the  system  of  court  without 
jury.  This  was  done  chiefly  on  the  demand  of  New  York 
City.  In  the  large  city,  commissioners  do  not  have  a  thorough 
knowledge  of  local  conditions  as  they  do  in  smaller  communi- 
ties. In  New  York  City  men  of  ability  and  experience  are  too 

15  To  Art.  i,  sec.  7,  adopted  Nov.  4,  1913,  and  introduced  by  statutory 
authority  in  New  York  City,  N.  Y.  Laws,  1915,  ch.  596.  repealing  ch.  21, 
sec.  1435-1448  of  the  New  York  City  charter,  and  adding  a  new  ch.  21, 
sees.  1431-1453,  thereto. 


54  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

busy  to  give  prompt  and  continuous  service  in  matters  outside 
their  regular  business,  and  the  selection  of  dates  for  hearings 
before  commissioners  at  considerable  intervals  for  the  conveni- 
ence of  commission,  witnesses,  and  counsel,  the  session  being 
usually  only  an  hour  long,  resulted  in  proceedings  dragging  on 
for  years.  Courts  do  not  try  cases  in  this  way.  In  New  York 
City  unscrupulous  experts,  by  testifying  to  unduly  high  values, 
were  able  to  obtain  excessive  verdicts.  The  advocates  of  the 
amendment  wished  to  have  one  judge  assigned  to  condemnation 
matters;  who,  striving  for  consistency  in  the  various  cases 
before  him,  would  soon  learn  to  distinguish  between  the  ex- 
perts who  were  reliable  and  those  who  were  not ;  as  commis- 
sioners, hearing  them  once,  could  not  possibly  do.  The  friends 
of  the  amendment  also  saw  that  a  judge,  instead  of  fixing 
values  for  single  lots  in  separately  conducted  cases,  could  with 
much  greater  speed  and  accuracy  unite  and  try  at  the  same  time 
the  cases  for  the  determination  of  the  values  for  an  entire  half 
mile  or  more  of  street  frontage.  It  was  also  their  desire  that 
the  same  judge  should  be  assigned  to  condemnation  cases  where 
the  experts  are  selected  to  testify  to  high  values,  and  to  the 
review  of  the  assessment  of  taxes  on  real  property  where  they 
are  hired  to  swear  to  low  valuations.  Many  of  these  reforms, 
dependent  upon  the  discretion  of  judges  and  their  willingness 
to  abandon  traditional  methods,  have  not  yet  been  accomplished, 
but  enough  has  been  achieved  to  show  that  in  New  York  City 
the  amendment  is  of  great  merit. 

The  system  discarded  by  New  York  City  has  in  other  juris- 
dictions been  fairly  satisfactory.  Evidently  in  this  matter  much 
depends  upon  local  conditions  and  the  general  system  of  which 
condemnation  is  a  part  in  that  locality,  evidently  much  remains 
unsettled  and  in  urgent  need  of  further  study.  It  is,  therefore, 
most  interesting  to  note  that  England  has  just  inaugurated  a 
system  totally  different  from  any  in  use  in  this  country.18 

"In  order  to  understand  that  system  a  study  of  the  history  of  con- 
demnation in  England  is  necessary.  The  reader  is  referred  to  Cripps  on 
Compensation  and  to  the  recent  Report  on  Acquisition  and  I'atuation  of 
Land,  mentioned  on  p.  47.  The  new  system,  much  lt>-  r.ulir.il  than  the 
one  recommended  in  the  report,  was  inaugurated  by  the  Acquisition  of 
Land  (Assessment  of  Compensation)  Act,  1919,  referred  to  there. 


ACQUIRING  THE  LAND  55 

Change  of  Attitude  Toward  Procedure. — Valuable  in 
itself  as  is  the  study  of  procedure  in  eminent  domain  under  the 
auspices  of  the  Russell  Sage  Foundation,  it  is  most  significant 
as  an  indication  of  a  change  of  attitude  toward  such  problems. 
Hitherto  we  have  been  chiefly  concerned  with  the  objects  to  be 
attained  in  our  legislation  and  have  not  sufficiently  realized  the 
importance,  in  their  attainment,  of  the  methods  to  be  employed 
for  the  purpose.  It  is  not  until  comparatively  recent  times  that 
we  have  begun  to  give  serious  thought  and  study  to  procedure. 
The  first  result  of  increased  attention  to  methods  has  been  an 
increase  in  the  complexity  of  our  laws.  This  has  been  espe- 
cially so  in  eminent  domain,  where,  more  perhaps  than  in  most 
subjects,  technicalities  and  delays  involve  expense  which  must 
be  paid  for  by  the  public  as  a  part  of  the  price  of  the  land  it 
acquires.  The  study  of  procedure,  for  which  we  are  so  much 
indebted  to  the  Russell  Sage  Foundation,  indicates  that  we 
are  beginning  to  realize  that  complicated  and  cumbrous  ma- 
chinery in  eminent  domain  is  an  evil  which  must  and  can  be 
remedied.  Few  reforms  would  more  aid  the  cause  of  city 
planning  and  efficient  city  government  generally  than  a  reform 
in  the  procedure  in  eminent  domain,  in  which  studies  such  as 
this  one  are  a  necessary  first  step. 

Condemnation  for  General  Public  Use. — Several  recent 
American  writers  on  municipal  government  have  advocated  for 
our  cities  the  policy  of  acquiring  a  large  amount  of  land  within 
the  city  limits  and  in  its  environs,  and  cite  German  practice  in 
support  of  it.  A  few  German  cities  own  very  large  amounts  of 
land.  In  so  far  as  this  land  is  acquired  in  excess  of  the  city's 
own  needs,  the  purpose  of  the  acquisition  is  as  a  rule  to  con- 
trol the  price  of  building  land,  and  thus  enable  the  citizen  to 
buy  land  or  rent  a  house  at  a  low  cost.  This  policy  has  by  no 
means  been  uniformly  successful  in  Germany  and,  just  before 
the  War,  was  still  regarded  in  some  quarters  as  a  doubtful 
experiment.  It  is  only  in  certain  directions  and  certain  parts 
of  the  vast  periphery  of  our  cities  that  development  will  be 
rapid  and  the  increase  in  land  prices  great.  In  Germany  the 
growth  of  the  city  in  the  direction  of  the  publicly  owned  land 
can  be  made  certain  by  forbidding  improvements  in  other  direc- 


56  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

tions ; 1T  yet  land  ownership  by  the  city  has  by  no  means  always 
been  profitable.  As  a  general  policy  the  extensive  purchase  of 
land  by  German  cities  is  too  recent  as  yet  to  be  judged  by  its 
results.  Certainly  at  the  prices  at  which  suburban  land  is  held 
in  this  country,  such  a  policy  cannot  be  conservatively  advo- 
cated, even  if  legal;  and  many  city  planners  in  England  believe 
the  same  to  be  true  there. 

Cities  in  Germany  that  do  not  buy  land  to  control  or  influ- 
ence the  realty  market,  do  nevertheless  purchase  land  for  many 
purposes,  such  as  the  erection  of  workmen's  houses,  not  here 
regarded,  until  very  recently  in  any  event,  as  public.  This, 
however,  is  by  no  means  the  only  reason  why  such  cities  own 
more  land  than  cities  in  this  country.  In  Germany  the  city 
acquires  land  for  its  ordinary  needs  in  advance.  In  this  way 
land  may  be  selected  best  suited  for  the  various  public  uses. 
Under  such  a  system,  too,  planning  may  be  made  better  to  suit 
land  used  for  public  purposes. 

This  policy  of  acquiring  land  in  good  season  we  are,  in  a 
measure  at  least,  prevented  from  adopting  by  the  way  in  which 
we,  in  practice,  interpret  the  requirement  that  property  shall  be 
taken  only  for  a  public  use.  This  we  regard  as  meaning  that 
each  separate  piece  of  property  must  be  taken  for  a  specific 
public  use  named  at  the  time  of  the  taking; 18  whereas  in  Ger- 
many this  is  not  considered  necessary.  It  is  undoubtedly  easier 
for  us  by  our  method  to  prove  the  city's  case;  but,  it  is  sub- 
mitted, there  is  no  legal  reason  why,  under  a  statute  drawn  for 
the  purpose,  we  in  this  country  should  not  take  land  for  any 
legitimate  public  use  to  be  determined  later,19  and  no  insuper- 
able difficulty  in  proving  such  a  case  for  the  city,  especially  since 
we  are  beginning  to  recognize  that  there  is  a  certain  proportion 

9  See  pp.  39-  457- 

M  This  is  in  part  due  to  the  desire  of  the  courts  that  the  relevant  facts 
should  appear  dearly  and  specifically  in  the  pleadings.  See  in  this  con- 
nection Nichols,  Eminent  Domain  (zd  ed.),  ch.  XXIII;  Noell  v.  Tennes- 
see, etc.,  Co,  130  Tenn.  24?  at  250  (1914). 

"The  policy  of  taking  land  for  general  public  use  was  advocated  by 
the  recent  "Land  Enquiry  Committee"  in  England;  see  their  report  The 
Land,  Vol.  II,  p.  289  and  ff.  (Hodder  and  Stoughton,  London,  1914). 
Apparently  such  a  taking  is  legal  in  Saskatchewan,  Canada;  see  its  Stats. 
1915,  Ch.  16,  sec.  204,  par.  80. 


ACQUIRING  THE  LAND  57 

desirable  between  population  and  public  land.  It  is  a  significant 
fact  in  this  connection  that,  although  under  present  practice  in 
this  country  property  is  always  condemned  for  a  specific  public 
use,  it  may  nevertheless  be  diverted  to  other  uses.20 

20  Sometimes  a  state  statute  forbids  a  city  which  has  obtained  the  fee 
or  absolute  and  complete  title  to  land  for  a  certain  purpose,  as  for  in- 
stance for  park  use,  to  employ  this  land  for  any  other  purpose ;  some- 
times the  purpose  for  which  the  city  acquires  the  property  is  specified  in 
the  statute  under  which  it  is  acquired.  In  this  case  a  statute  author- 
izing a  change  of  use  is  necessary;  but  such  a  statute  is  unquestionably 
valid.  Brooklyn  Park  Commissioners  v.  Armstrong,  45  N.  Y.,  234 
(1871)  ;  Brooklyn  v.  Copeland,  106  N.  Y.  496  (1887)  ;  Curran  v.  Louis- 
ville, 83  Kentucky,  628  (1886).  If,  however,  only  an  easement  for  a 
given  use  has  been  obtained,  there  can  be  no  change  of  use  except  by 
means  of  the  condemnation  or  purchase  of  additional  rights  in  the  land. 
Ibid.  Where,  however,  the  city  has  acquired  absolute  ownership,  without 
any  such  limitations,  and  takes  land  for  a  given  purpose,  it  may  divert  it 
to  other  uses.  See,  generally,  McQuillin,  Munic.  Corps,  Vol.  Ill,  sees. 
1140,  1141,  1155. 

Where  land  is  acquired  for  a  given  purpose,  and  paid  for  in  whole  or 
in  part  by  the  assessment  of  benefits  on  neighboring  property,  it  is  the 
better  opinion  that  the  city  may,  nevertheless,  divert  this  land  to  other 
uses.  The  levy  and  payment  of  the  assessment  does  not  constitute  a 
contract;  and  cities,  as  they  change  and  grow,  must  be  allowed  to  change 
the  use  of  their  real  estate  accordingly.  Nichols,  Eminent  Domain  (2d 
ed.)  sec.  116,  citing  cases  pro  and  contra;  see  Seattle  etc.  Co.  v.  Seattle, 
37  Wash.  274,  (1905),  also  contra. 

In  Germany  the  power  of  cities  to  expropriate  realty  is  more  limited 
than  with  us,  but  their  power  to  acquire  it  with  the  consent  of  the  private 
owner  is  greater.  Cities  in  Austria  cannot  expropriate  for  any  purpose; 
but  must  even  obtain  the  land  for  the  construction  of  streets  by  agree- 
ment with  the  land  owners ;  the  method  employed  being  to  establish  a 
plan'  and  refuse  permission  to  the  land  owners  to  build  on  their  land 
until  that  portion  of  it  needed  for  the  streets  is  ceded  to  the  city.  In 
Bavaria  until  recently  the  law  was  the  same;  but  on  May  9,  1918,  a 
statute  was  passed  authorizing  communes  of  more  than  five  thousand 
inhabitants  to  condemn  land  for  highways  and  for  the  construction  of 
houses  for  people  of  small  means. 

German  cities,  as  a  rule,  obtain  land  for  streets  by  condemnation;  but 
acquire  only  at  private  sale  land  for  parks  and  sites  for  public  buildings, 
which  our  cities  may  condemn;  and  land  f-or  housing  and  for  the  pur- 
pose of  keeping  the  market  price  of  building  land  within  reasonable 
limits,  for  which  purposes  our  cities  cannot  get  it  by  any  method.  Prus- 
sia, however,  in  her  housing  statute  of  1918  (see  p.  466  of  this  work) 
now  allows  cities  to  condemn  land  for  small  paries  and  playgrounds,  and, 
until  December  31,  1926,  for  housing  people  of  limited  means  and  sani- 
tation of  unsanitary  blocks  or  districts. 

There  is  a  growing  belief  that  the  housing  of  people  of  limited  means 
in  this  country  may  be  held  by  our  courts  to  be  a  public  purpose  for 
which  land  may  be  condemned ;  and  Massachusetts  has  passed  a  consti- 
tutional amendment  (art.  43)  to  authorize  it. 

Land  may  in  some  cases  be  acquired  with  the  consent  of  the  owner 
when  it  cannot  be  acquired  for  the  same  purpose  against  his  will;  see  p. 
134- 


58  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Condemnation  of  Land  Already  Devoted  to  Public 
Use. — Land  condemned  for  one  public  purpose  may  subse- 
quently be  taken  for  another  such  purpose,  which  the  legisla- 
ture has  come  to  consider  more  important.21 

*  Nichols,  Eminent  Domain  (2d  ed.,  Matthew  Bender  and  Co.,  Albany, 
N.  Y.,  1917),  sees.  351,  352,  361,  ff. 


CHAPTER  II 

EXCESS  AND  ZONE  CONDEMNATION  AND 
REPLOTTING  IN  EUROPE 

Excess  condemnation,  zone  condemnation  and  replotting 
are  related  extensions  of  the  power  of  eminent  domain  and  of 
the  police  power.  Only  one  of  these  extensions,  excess  con- 
demnation, has  been  employed  in  this  country;  but  the  others 
have  proved  so  useful  in  Europe  that  it  is  well  worth  our 
while  to  examine  them  in  the  light  of  their  history  and  con- 
sider to  what  extent  they  would  be  serviceable  and  legal  here. 

Excess  Condemnation. — Excess  condemnation  is  the 
somewhat  unfortunate  name  in  the  United  States  for  a  develop- 
ment of  the  power  of  eminent  domain  exercised  under  various 
names  in  most  European  countries.  There,  as  here,  private 
land  can  be  condemned  only  for  a  public  use.  'It  follows  that 
land  only  in  an  amount  sufficient  for  that  use  can  be  so  taken. 
The  advocates  of  excess  condemnation,  so  called,  claim  that 
there  are  many  cases  in  which  land  just  outside  the  physical 
limits  of  the  principal  enterprise  should  be  appropriated  for 
purposes  incidental  to,  and  thus  a  part  of  it.  To  call  this 
"excess"  condemnation,  is  to  admit  that  the  claim  is  unfounded 
and  the  taking  illegal.  A  better  name  would  be  "incidental" 
condemnation ;  but  it  is  probably  too  late  to  make  the  change. 

An  illustration  of  excess  condemnation  is  the  laying  out  of 
a  new  street  and  the  possible  taking  of  land  on  each  side  of 
it,  outside  the  proposed  street  lines.  For  what  reasons  would 
the  city  planner  wish  this  extra  land ;  would  a  taking  of  it  be 
so  related  to  the  construction  of  the  street  as  to  be  for  street 
use?  If  so,  this  land  may  be  obtained  by  eminent  domain. 

Excess  condemnation  is  most  often  urged  either  for  the 
cutting  of  a  new  business  street,  or  the  widening  of  an  old  one 

59 


60  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

through  a  low  class  development  in  the  center  of  the  city;  or 
for  the  laying  out  of  a  boulevard  in  the  outskirts  through  un- 
improved land.  In  either  case  one  or  more  of  three  effects  may 
be  expected: — 

First,  the  adjacent  land  may  be  raised  in  value.  In  this 
event  the  building  of  the  street  and  the  taking  of  the  extra  land 
to  sell  again  in  order  to  help  pay  for  the  street  may  well  be 
regarded  as  included  in  the  one  business  enterprise.  The  in- 
creased value  is  produced  not  by  the  local  land  owner  but  by 
the  city.  If  the  city  does  not  obtain  the  profits  resulting  from 
this  and  similar  enterprises  which  it  undertakes,  the  net  cost 
of  these  enterprises  will  be  increased.  No  private  business 
could  long  neglect  such  incidental  gains  and  escape  bankruptcy. 
Cities  which  adopt  such  a  policy  must  either  lack  needed  facili- 
ties or  be  burdened  with  ever  increasing  debts. 

Secondly,  the  cutting  of  the  new  street  may  leave  remnants 
of  lots  on  each  side  of  it  not  large  enough  for  independent  im- 
provement, which  shut  off  the  land  immediately  back  of  it  from 
the  street  and  preclude  the  possibility  of  its  development.  If 
proper  building  on  the  street  is  delayed  until  private  initiative 
unites  the  remnant  and  the  land  back  of  it  in  common  owner- 
ship, the  delay  will  be  a  long  one.  The  result  will  be  that  the 
city  will  lose  much  in  taxes,  and  the  new  street,  by  reason  of 
its  ugly  appearance  for  so  many  years,  will  be  given  perhaps  a 
character  that  will  permanently  impair  its  usefulness  and  lower 
values  on  it. 

A  third  effect  may  be  that  the  use  of  the  adjacent  land, 
even  if  not  cut  into  remnants,  may  lessen  the  usefulness  of  the 
principal  improvement.  A  boulevard  with  cheap  houses  bor- 
dering it  is  no  longer  the  beautiful  boulevard  that  the  city  spent 
its  money  to  create ;  a  view  which  the  boulevard  was  planned 
to  exhibit  to  those  using  it  may  be  spoiled  by  a  solid  row  of 
tall  buildings  or  by  buildings  at  wrong  points.  If  the  adjacent 
land  is  taken  wherever  necessary  and  resold  with  covenants 
against  such  uses  of  it,  the  boulevard  is  improved  for  the  pur- 
poses for  which  it  was  built. 

Street  construction  is  not  the  only  connection  in  which  ex- 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  61 

cess  condemnation  may  be  employed.  On  the  contrary,  it  is 
expedient  in  carrying  out  most  public  improvements.  A  new 
municipal  building  of  any  pretension  raises  neighboring  land 
values,  and  if  the  city  does  not  appropriate  the  resulting  profit, 
an  asset  of  value  is  neglected.  An  inappropriate  use  of  adja- 
cent land  mars  the  effect  of  the  building  on  which  public  money 
was  spent.  This  is  bad  business  as  well  as  bad  taste.  For  the 
same  reasons  condemnation  of  land  adjacent  to  a  new  park  or 
similar  public  undertaking  may  be  in  the  public  interest.  For 
much  the  same  reason,  land  bordering  on  a  public  or  quasi  pub- 
lic industrial  enterprise  should  generally  be  publicly  controlled.1 
Thus  the  location  of  appropriate  industries  on  land  bordering 
on  a  municipally  owned  railroad  would  raise  the  value  of  that 
land;  and  the  related  development  of  road  and  industries  would 
increase  the  efficiency  and  profits  of  both,  or,  with  governmen- 
tal control,  would  lower  transportation  rates  and  the  prices  of 
goods  to  the  consumer.  If  the  road  were  built  and  run  by 
private  capital,  the  city  or  state  could  obtain  its  profits  by  the 
sale  or  taxation  of  the  franchise  given  for  such  a  quasi  public 
enterprise,  or  enforce  lower  rates  and  prices  by  control  in  the 
public  interest.  In  the  same  way  most  if  not  all  industrial  im- 
provements, public  in  their  nature,  could  be  made  to  serve  the 
public  more  efficiently  or  yield  additional  public  revenue.  In 
fact,  it  is  difficult  to  conceive  of  a  wisely  planned  and  executed 
public  or  quasi  public  work  in  which  the  improvement  and  the 
land  near  it,  whether  that  land  is  ultimately  in  public  or  private 
ownership,  should  not  be  used  in  harmony  and,  therefore,  de- 
veloped under  common  control  with  that  end  in  view. 

Zone  Condemnation. — Zone  condemnation  is  the  con- 
demnation of  an  entire  zone  or  district.  It  is  usually  employed 
in  the  built  up  parts  of  cities  where  the  tract  in  question  con- 
sists partly  of  private  land,  partly  of  public  areas,  and  is  espe- 
cially useful  in  the  elimination  of  slums.  In  such  cases  it  is 

1  In  Prussia  (Gesetz  Sammlung,  or  Collection  of  Laws,  for  1905,  p. 
179,  No.  13,  Sec.  16)  under  the  "Law  with  regard  to  Construction  of 
Canals,  of  April  i,  1905,"  the  State  is  given  the  right  to  condemn  land 
on  each  side  of  certain  state  canals  within  a  zone  on  each  side  not  to 
exceed  one  kilometer  in  width. 


62  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

not  one  street  with  the  land  abutting  on  it  as  in  excess  condem- 
nation, but  a  network  of  streets  with  the  included  land  that  is 
taken. 

In  zone  condemnation  the  land  in  the  district  selected  is 
taken  with  all  its  improvements,  puBlic  and  private,  the  private 
owners  are  paid  the  value  of  their  property  at  the  time  of  its 
condemnation,  the  improvements,  so  far  as  necessary,  destroyed. 
all  the  land  thrown  into  a  common  mass,  the  land  for  public 
uses  withdrawn,  the  tract  replanned  and  re-subdivided,  and  the 
land  destined  for  private  uses  resold.  The  destruction  of 
buildings,  streets  and  similar  improvements  is  expensive  but 
necessary.  The  bad  conditions  are  usually  due  not  alone  to  the 
state  of  the  buildings,  but  to  the  fact  that  buildings  as  a  whole 
occupy  so  large  a  percentage  of  the  area  as  to  leave  insufficient 
space  for  light  and  air;  that  block  and  lot  divisions  are  faulty ; 
and  that  streets  and  other  public  open  spaces  are  badly  planned 
and  located,  or  insufficient  for  local  needs.  Complete  replanning 
in  such  cases  is  essential. 

Replanning  of  this  sort  must  be  done  under  the  power  of 
eminent  domain  because  the  only  practical  way  of  financing  it 
is  by  condemnation  and  resale.  The  heavy  cost  of  such  a  pro- 
ceeding cannot  be  imposed  upon  the  private  owners.  Often 
the  increment  is  slow  in  accruing  and,  when  it  comes,  is  too 
small  to  pay  all  the  costs;  sometimes  the  land  is  better  suited 
to  new  uses  with  lots  of  different  sizes  and  shapes,  and  cannot 
profitably  be  so  subdivided  as  to  be  returned  to  the  former 
owners.  It  is  only  the  state  that  can  recoup,  and  it  is  only 
by  recoupment  that  the  state  can  recover  what  can  be  thus 
saved. 

Replotting. — Replotting  is  the  re-subdivision  of  building 
land.  The  size  and  shape  of  building  lots  and  their  relation 
to  each  other  and  to  neighboring  streets  and  other  public  fea- 
tures, greatly  affect  the  character  of  buildings  erected  on  these 
lots.  It  is  for  the  public  interest  that  the  plotting  should  be  such 
as  to  encourage  the  construction  of  healthful  dwellings  and  con- 
venient stores  and  factories.  Proper  subdivision  is  also  essen- 
tial to  economical  real  estate  development;  and  such  develop- 
ment, tending  to  make  building  lots  cheap  and  abundant,  is  a 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  63 

public  advantage.    It  is,  therefore,  proper  that  it  should  be  done 
under  public  supervision. 

In  publicly  guided  replotting,  the  land  is  thrown  into  a  com- 
mon mass,  replanned  and  re-subdivided,  as  in  zone  condemna- 
tion; but  the  authorities,  instead  of  paying  for  and  reselling 
the  land  destined  for  private  uses,  return  it  to  the  original 
owners  in  the  proportions,  so  far  as  possible,  in  which  it  was 
contributed.  The  expenses  of  the  improvement  are  charged  to 
the  land. 

Replotting,  like  zone  condemnation,  is  re-subdivision;  but 
while  zone  condemnation  is  a  use  of  the  power  of  eminent 
domain  under  which  the  land  must  be  taken  and  paid  for,  thus 
tying  up  public  funds  for  a  considerable  period  and  involving 
the  public  in  complicated  real  estate  transactions,  compulsory 
replotting  is  accomplished  by  means  of  the  police  power,  with- 
out either  of  these  disadvantages.  This  difference  of  procedure 
is  rendered  possible  by  the  difference  in  the  task  to  be  accomp 
lished.  Where  land  is  highly  improved,  the  costs  and  losses  of 
re-subdivision,  involving  the  destruction  of  expensive  improve- 
ments, met  slowly  and  perhaps  only  partially  by  the  accrual  of 
increment  in  value  from  replanning,  would  be  an  intolerable 
burden  upon  the  private  owners;  whereas  if  the  land  in  ques- 
tion is  only  slightly  improved,  the  cost  is  small  and  the  incre- 
ment immediate.  It  is  the  absence  of  costly  structures  to  be 
demolished  which  makes  re-subdivision  by  replotting,  under  the 
police  power,  appropriate  and  fair. 

The  object  sought  to  be  attained  by  the  use  of  the  power 
of  eminent  domain  in  excess  and  zone  condemnation  and  of 
the  police  power  in  compulsory  replotting,  is  the  proper  devel- 
opment of  the  territory  involved.  To  the  city  planner  this 
result,  whether  achieved  with  or  without  the  consent  of  the 
owners  of  the  land  in  question,  is  equally  acceptable.  The  prac- 
tical planner  recognizes  the  fact,  however,  that  without  compul- 
sion this  can  seldom  be  accomplished  with  the  same  promptness,, 
fullness  and  economy,  since  almost  invariably  a  few  of  these 
owners  do  not  realize  that  the  enterprise  is  in  the  interest  of 
all,  or  they  see  in  it  opportunity  to  seize  an  unfair  advantage; 
and  a  resort  to  compulsion  is,  therefore,  necessary  to  avoid 


64  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

undesirable  compromises,  intolerable  delays  or  even  entire 
failure. 

In  law  the  differences  between  compulsory  and  voluntary 
action  may  be  said  to  be  in  the  point  of  view.  To  the  city  the 
question  is  whether  the  property  will  serve  a  public  use,  and  it 
is  immaterial  whether  it  is  obtained  by  compulsion  or  by  con- 
sent. Accordingly,  in  England  no  "excess"  or  "zone"  land  can 
be  taken  by  a  municipality  by  agreement  except  under  circum- 
stances justifying  its  condemnation.  To  the  property  owner, 
however,  in  all  cases,  a  voluntary  transfer  is  unobjectionable; 
and  in  this  country  it  is  settled  on  authority  that  excess  acqui- 
sition with  the  owner's  consent  is  legal  even  where  excess  con- 
demnation is  not.  There  are  many  statutes  authorizing  cities 
to  purchase  excess  land ;  and  it  should  be  noted  that  they  are  not 
statutes  of  excess  condemnation.2 

Under  many  statutes,  both  here  and  abroad,  the  public  au- 
thorities, if  they  condemn  a  part  of  the  lot  of  a  given  owner,  are 
authorized  and  often  compelled  also  to  purchase  the  rest  of  it, 
if  the  owner  desires  to  sell.  This  is  a  species  of  excess  acquisi- 
tion just  considered,  and  not  excess  condemnation;  and  it 
should  also  be  noted  that  it  is  more  in  the  nature  of  a  rule  of 
damages  in  favor  of  the  land  owner  than  a  city  planning  power 
conferred  on  the  public. 

It  has  been  stated  that  compulsory  replotting  is  a  regulation 
of  land  under  the  police  power,  and  excess  and  zone  condemna- 
tion are  a  taking  of  land  under  the  power  of  eminent  domain. 
What  then,  precisely,  is  the  difference  between  excess  condem- 
nation on  the  one  hand  and  zone  condemnation  on  the  other, 
and  wherein  do  they  both  differ  from  condemnation  usually 
so  called? 

Excess  condemnation  and  zone  condemnation  are  both 
extensions  of  condemnation  into  fields  in  which  it  had  not 
previously  been  employed.  In  excess  condemnation,  as  already 
noted,  the  taking  is  conceived  of  as  incident  to  another  and  main 
taking,  while  in  zone  condemnation  the  taking  is  conceived  of 
as  independent.  This,  however,  does  not  constitute  a  funda- 

1  I'Or  a  r»  ferine*.-  to  the  decisions  and  statutes,  see  p.  134. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  65 

mental  difference  between  them;  for  both  are  cases  of  taking 
for  a  public  use.  Indeed,  but  for  a  mischance  of  legal  develop- 
ment due  to  lack  of  vision,  condemnation  would  logically  have 
covered  both  these  extensions,  and  excess  and  zone  condemna- 
tion as  such  would  never  have  been  known.  Both  are  clumsy 
methods  of  broadening  the  law  to  meet  city  planning  needs  and 
conceptions. 

Origin  of  Excess  Condemnation,  French. — Excess  con- 
demnation and  zone  condemnation,  related  in  their  growth, 
have  had  a  long  history.  To  their  development  from  condem- 
nation proper  many  countries  have  contributed.  Condemnation 
may  be  defined  as  the  regulated  taking  of  property  for  public 
use.  From  time  immemorial  governments  have  seized  private 
property,  and  more  and  more,  as  governments  grew  to  be  just 
and  free,  compensation  followed.  The  regulation  of  such  tak- 
ing, however,  came  only  with  the  modern  conception  of  gov- 
ernment as  the  rule  of  law.  In  France  it  first  appeared  during 
the  revolution;  and  excess  and,  later,  zone  condemnation  fol- 
lowed. 

Long  before  excess  and  zone  condemnation,  or  even  con- 
demnation itself  properly  so-called,  manifested  itself,  France 
was  obtaining  many  of  the  results  of  excess  and  zone  condem- 
nation by  somewhat  different  methods.  For  centuries  France 
has  endeavored  to  make  its  capital  beautiful,  and  in  so  doing 
has  seen  the  need  of  harmony  in  the  development  of  public  and 
neighboring  private  property.  A  method  of  obtaining  this 
harmony,  early  adopted  in  Paris,  was  to  sell  this  neighboring 
land  subject  to  a  covenant  entered  into  by  the  purchaser,  to 
erect  buildings  on  it,  within  a  given  number  of  years,  in  accord- 
ance with  plans  furnished  by  the  State.  In  this  way  Henry  IV 
as  early  as  1605  created  what  is  now  known  as  the  Place  des 
Vosges.3  Many  of  the  beautiful  squares  and  streets  of  Paris 
and  other  cities  in  France  and  other  European  countries  were 
planned  and  constructed  under  similar  contracts. 

3  The  contract  is  given  on  p.  I  of  Recueil  cFActes  Administratifs  et  de 
Convention  Relatifs  aux  Servitudes  Speciales  d 'Architecture,  VUle  de 
Paris,  1905. 


66  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

In  1789  France  in  her  "Declaration  of  the  Rights  of  Man" 
laid  the  foundation  for  a  modern  condemnation  law  by  pro- 
viding that : 

"Art.  17.  Property  is  an  inviolable  and  sacred  right;  no  one  can 
be  deprived  of  it  unless  a  public  necessity,  legally  established,  requires 
it,  and  upon  just  previous  compensation." 

This  provision  was  confirmed  by  the  constitution  of  1791,* 
and  subsequently  embodied  in  the  civil  code  5  with  the  modifi- 
cation that  public  utility  and  not  public  necessity  was  required. 
For  a  time  taking  for  public  use  continued  to  be  arbitrary  for 
lack  of  statutory  regulation,  but  on  March  8,  i8io,a  a  statute 
was  passed  setting  up  the  necessary  procedure.  This  statute 
was  almost  entirely  superseded  by  the  Statute  of  July  7,  i833,7 
which,  in  turn,  was  practically  replaced  by  the  Statute  of  May 
3,  1 84 1.8  The  law  of  1841  containing  the  substance  of  much 
of  the  earlier  statutes,  with  modifications  and  additions  made 
from  time  to  time  by  later  laws  and  decrees,  is  still  in  force, 
and  is  the  general  condemnation  or  expropriation  law  of  France. 
Land,  however,  is  acquired  (and  paid  for)  as  an  incident  to  the 
fixing  of  street  and  building  lines  for  the  rectification  and  wid- 
ening of  highways,  under  the  law  of  September  16,  1807,  and 
similar  statutes  subsequently  passed.9 

4  Preamble,  Art.  3,  4. 

•Art    S45- 

'Bulletin  des  his,  IV*  sir.,  Bull.  273,  No.  5255. 

f  Bulletin  des  lots,  IXs  ser.,  Bull    107,  No.  241. 

•  Bulletin  des  lots,  IX'  ser..  Bull.  808,  No.  9285. 

•The  law  of  September  16,  1807  (Bulletin  des  lois,  IV  sdr,  Bull.  162, 
No.  2797)  is  known  as  the  "Law  for  the  Drainage  of  Swamps,  t Onstruc- 
tion  of  Streets,  etc."  When  existing  streets  are  widened  under  this  law. 
the  land  needed  for  the  purpose  must  be  paid  for  when  acquired  (see  sec. 
50)  ;  but  between  the  time  of  laying  out  the  wider  street  and  the  taking  of 
the  land  for  the  widening,  the  owner  of  this  strip  is  deprived  of  rights  in 
it  for  which,  everywhere  in  this  country  except  in  Pennsylvania  (see  p.  30), 
the  authorities  must  pay.  If  there  are  buildings  on  it,  the  owner  may  use 
them,  but  can  make  no  substantial  repairs  or  renewals  on  them  or  replace 
them.  If.  therefore,  the  city,  having  laid  out  its  wider  street,  is  willing 
to  wait  until  buildings  on  it  are  worthless,  it  may  do  so  with  safety,  and 
can  then  take  the  strip  of  land  needed  for  the  purpose  on  payment  of 
its  value  without  buildings.  The  law  is  much  the  same  in  Germany. 

In  France,  prior  to  the  planning  statute  of  1919  (see  p.  529),  the  city 
acquired  no  rights  whatever  in  land  by  the  laying  out  of  new  streets.  To 
establish  a  plan  of  such  streets,  or  fix  any  lines  of  such  streets,  so  that 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  67 

It  Was  the  statute  of  1807,  just  mentioned,  which  intro- 
duced the  principle  of  excess  condemnation  in  France.  That 
statute  (sec.  53)  gives  the  land  owner  the  right,  on  payment, 
to  take  remnants  left  by  the  relocation  of  street  lines  which 
cut  him  off  from  the  new  street,  and  empowers  the  public 
authorities  to  expropriate  his  entire  lot  if  he  does  not  do  so. 
The  conditional  right  given  by  this  statute  to  the  authorities  to 
take  land  outside  the  lines  of  the  street,  is  a  limited  right  of 
excess  condemnation;  and  excess  condemnation,  thus  made  a 
part  of  the  law  of  France,  has  remained  so  ever  since;  but  for 
many  years  there  was  no  extension  of  the  principle. 

The  law  of  1807  (sec.  51)  and  subsequent  laws,  provide 
that  the  owner  of  a  lot,  a  part  of  which  is  appropriated  for 
public  use,  may  require  the  authorities  in  certain  cases  to  take 
and  pay  for  his  entire  lot.  Provisions  more  or  less  similar  to 
this  are  in  the  laws,  of  later  date,  to  be  found  in  many  other 
countries.10 

property  owners  must  observe  them,  the  city  may  now  resort  to  the 
planning  statute ;  and  must,  now  as  before,  take  the  land  by  resort  to 
the  condemnation  law.  In  Germany,  it  will  be  remembered,  the  planning 
law  is  also,  in  most  of  the  states,  authority  for  condemnation  of  land  or 
any  interest  in  it  which  is  needed  under  the  plan.  (See  p.  452.) 

In  this  country,  except  in  Pennsylvania,  street  widenings  if  not  done 
at  once  when  planned,  can  be  insured  only  by  establishing  a  building  line 
under  eminent  domain;  with  relation  to  which  see  p.  177;  or  perhaps  by 
creating  a  building  line  under  a  zoning  plan ;  with  relation  to  which  see 
p.  279. 

The  French  law  of  1807  also  provides  for  the  collection  of  local  bene- 
fits due  to  public  works,  or  their  deduction  from  the  compensation  to 
be  paid  for  land  taken  for  such  works ;  but  the  procedure  for  their  col- 
lection proved  to  be  so  cumbrous  that  it  is  only  within  very  recent  times 
that  any  attempt  has  been  made  in  France  to  obtain  them. 

10  French  expropriation  laws  of  July  7,  1833,  and  May  3,  1841.  A 
translation  of  the  law  of  1841,  as  subsequently  amended,  will  be  found 
on  p.  91  of  this  work.  The  provision  referred  to  is  art.  50.  Similar 
provisions  will  be  found  in  general  expropriation  laws  of  Prussia 
(June  ii,  1874,  in  Gesets  Sammlung  or  collection  of  laws  for  that 
year,  p.  221,  sec.  9)  ;  Wiirttemberg  (Dec.  20,  1888),  art.  11  as  amended 
by  the  Ausfiihrungsgesetz  zum  biirgerlichen  Gesetzbuch  of  July  28,  1899, 
art.  209;  Belgium  (in  which  the  French  expropriation  law  of  March  8, 
1810,  with  minor  amendments  is  still  in  force)  ;  England  (Land  Clauses 
Consolidation  Act,  8-9  Viet.  ch.  18,  1845,  sec.  92,  and  subsequent  acts. 
See  Cripps  Law  of  Compensation  (4th  ed.,  1900,  Stevens  &  Sons,  Lon- 
don), p.  32;  Canada,  Revised  Statutes,  1906,  vol.  3,  ch.  143;  Prussian 
"City  Planning"  Law  of  July  2,  1875,  sec.  13;  Italy  (Law  of  Expro- 
priation for  Purposes  of  Public  Utility,  of  June  25,  1865,  sec.  23,  Raccolta 
Ufficiale,  v.  12,  1865,  No.  2359)  ;  United  States,  Dunn  v.  City  Council  of 


68  THE  LAW  OF  CITY  PLAXXIXC,  AND  ZONING 

General  Expropriation  Law  of  France. — To  an  under- 
standing of  excess  and  zone  condemnation  in  France,  some 
knowledge  of  procedure  in  condemnation  in  that  country  and 
the  differences  between  it  and  such  procedure  in  this  country, 
may  prove  helpful.  Inn  the  United  States,  at  common  law,  the 
condemnation  statute  is  a  complete  grant  of  the  power  to  take 
land  for  public  use.  In  France  and  other  Latin  countries,  under 
the  civil  law,  the  power  given  by  the  statute  is  inchoate,  and 
cannot  be  exercised  until  the  state,  in  each  case,  completes  it  by 
a  declaration  that  the  particular  undertaking,  falling  within  the 
general  provisions  of  the  law,  is  such  as  will  prove  useful  to 
the  public ;  and  officials  of  the  state  indicate  the  particular  pieces 
of  land  which  may  be  acquired  for  the  purpose.  Subsequently, 
in  France  as  in  this  country,  the  courts  pass  title  to  the  land 
and  fix  the  indemnities,  unless  the  parties  can  do  so  by  agree- 
ment. 

The  requisites  to  condemnation  for  public  use  in  France  are 
therefore : 

1.  A  law  granting  that  right  generally. 

2.  A  law,  administrative  decree  or  ordinance  declaring 
that  the  specific  improvement  for  which  the  land  is  desired  is 
in  the  public  interest,  and  directing  that  this  improvement  be 
carried  out. 

3.  A  designation  by  the  prefect  of  the  locality  where  the 
land  is  situated,  stating  the  location  of  that  improvement,  unless 
the  law  or  ordinance  of  public  utility,  already  passed,   suffi- 
ciently indicates,  in  a  general  way,  its  future  location.     Where 
an  extensive  enterprise,  like  a  railroad,  or  a  national  highway, 
is  contemplated,  a  further  designation  is  usually  necessary. 

4.  A  subsequent  decree  of  the  prefect  describing  by  metes 
and  bounds  the  specific  land  required  for  the  work.    This  desig- 
nation cannot  be  made  until  the  proprietors  of  the  lands  in 

Charleston,    16    South    Carolina    Law    Rep. — sometimes    cited    as     Har- 
per's  Law    Rep.    (S.   C.) — 189    (1824):    Roulat   v.    Municipality    No.    i.    5 
:.ma  Annual  Kcimrt-  Ma\or,  etc.  of  Raltimore  v.  Clunct, 

.?    Mil     .; ;  <"li.    -4U:    '\ 

Statutes  Manit'  '  1>.   I'M;.  /    Munic.   lust., 

ch.    i.vv   -re.  (><>i  ;    KtvJMil   Statutes   (  hit.    i>>\4.    Mimic.    Inst.,   cli.    i<)2,   sec. 
322,  sub-st 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  69 

question  have  received  notice  and  been  given  an  opportunity 
to  be  heard. 

5.  A  judgment  of  a  court,  with  a  jury,  passing  title  to  the 
lands  and  fixing  the  indemnities. 

This  process  has  been  summarily  characterized  in  a  stand- 
ard French  treatise  as  follows : ll 

"The  procedure  in  expropriation  may  thus  be  divided  into  two 
periods :  in  the  first,  the  government  orders  the  work  to  be  constructed, 
and  determines  its  location;  in  the  second,  the  courts  give  the  state 
title  to  the  lands  necessary  for  its  execution.  The  first  period — the 
one  which  may  be  called  the  administrative — must  itself  be  divided 
into  two  successive  phases,  which  result,  the  one  in  the  declaration 
of  the  public  utility  of  the  enterprise,  the  other  in  the  designation  of 
the  lands  to  be  expropriated.  Each  of  these  acts  must  be  preceded 
by  an  inquest." 

"Each  of  these  two  inquests  has  its  distinct  object.  Before  the 
declaration  of  public  utility  is  made,  the  expediency  of  the  work  in 
relation  to  the  general  interests  of  the  community  must  be  deter- 
mined ;  and  it  is  with  relation  to  this  point  that  individuals  are  notified 
to  give  their  opinions,  as  citizens,  and  not  as  land  owners.  But  once 
this  decision  has  been  reached,  it  remains  only  to  discover  the  means 
of  execution  most  suited  to  the  reconciliation  of  the  interest  of  pri- 
vate property  with  those  of  society;  and  this  is  the  object  of  the 
second  inquest." 

Of  great  importance  is  article  52  of  the  law  of  1841,  the 
substance  of  which  first  appeared  in  the  law  of  July  7,  1833. 
This  article  provides  that: 

"Improvements  give  rise  to  no  claim  for  reimbursement  if,  by 
reason  of  the  time  at  which  they  were  made,  or  of  any  other  circum- 
stance brought  to  the  attention  of  -the  jury,  it  believes  that  such 
improvements  were  made  in  order  to  obtain  increased  indemnity." 

This  article  makes  the  plan  of  an  improvement  for  which  ex- 
propriation is  sought,  binding  on  property  affected  by  it;  for 
if  the  land  owner,  with  knowledge  of  the  plan,  disregards  it,  he 
does  so  at  his  peril.  A  similar  clause  is  now  found  quite  gen- 
erally in  European  and  American  expropriation  laws,  the 
American  provision  being  narrower  than  those  to  be  found  in 

11  Pandecies  Francoises  (Paris,  1899),  Vol.  31,  p.  21, 
"  Public  hearing. 


TO  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

European  statutes.  It  is  the  inclusion  of  more  or  less  similar 
provisions  in  European  city  planning  laws — which  may  be 
characterized  as  condemnation  laws  in  which  the  plan  of  con- 
demnation is  to  be  executed  at  intervals  over  a  considerable 
period  of  years — that  make  city  planning  laws  in  Europe  effec- 
tive, as,  in  the  absence  of  such  provisions,  our  statutes  cannot 
be.18 

Beginning  of  Excess  Condemnation  in  the  United 
States. — It  was  in  the  United  States  that  the  practical  use, 
to  any  considerable  extent,  of  excess  condemnation  first  oc- 
curred. In  1812  the  State  of  New  York  passed  a  statute  14  al- 
lowing New  York  City  to  condemn  remnants  left  in  cases  of 
street  and  park  openings.  The  land  thus  acquired  was  in  prac- 
tice sold  promptly.  The  owner  of  adjoining  land  was  given 
the  first  opportunity  to  purchase.  Excess  condemnation  was 
regarded  not  as  a  revenue  measure  but  as  a  method  of  securing 
a  desirable  development  of  abutting  land.  In  1834  the  New 
York  courts  declared  this  statute  unconstitutional 15  and  the 
practice  stopped.  Extensive  use  of  this  procedure  was  made 
in  New  York  City,  but  it  did  not  spread  to  other  states.  It 
was  not  revived  in  the  United  States  until  1904,  when  the  re- 
nascence of  city  planning  in  this  country  had  already  occurred ; 
and  this  revival  was  probably  due  to  the  influence  of  foreign 
experience. 

Excess  Condemnation  in  England. — The  first  European 
country  to  make  any  considerable  use  of  excess  condemnation 
was  England,  where  the  practice  began  about  1845.  England, 
like  other  countries,  possesses  and  uses  the  power  of  eminent 
domain.  As  in  other  civilized  countries,  private  property  can 
be  taken  only  for  a  public  purpose  on  payment  of  just  compen- 
sation,18 but,  unlike  most  such  countries,  she  has  nowhere  for- 

"See  pp.  28.  453.  ff. 

"Laws  N.  Y.  1812.  ch.  174. 

'Mauer  of  Albany  St.,  n  Wendell   (N.  Y.)   140. 

*As  to  whether  in  some  cases,  as  for  instance  thnt  of  the  Irish  land 
legislation,  the  compensation  to  the  land  owner  was  just,  in  the  legal 
•ense  of  the  word,  see  Lecky,  Democraf\  and  Liberty  (Longmans,  Green 
and  Company,  1899),  Vol.  i,  pp.  67,  182,  209  and  ff.;  Montgomery,  Land 
Tenure  in  Ireland,  and  similar  books. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  71 

mally  guaranteed  the  property  owner  this  protection.  His 
actual  immunity  from  the  unjust  seizure  of  his  property  is  due 
to  the  fact  that  under  the  law  no  one  can  interfere  with  any 
property  right  without  authority  from  Parliament,  and  in  prac- 
tice Parliament  gives  permission  for  such  interference  only  for 
a  public  purpose,  on  condition  that  due  compensation  is  paid. 

Until  comparatively  recent  times  all  power  to  condemn 
private  property  for  any  particular  purpose  in  England  was 
granted  by  a  special  or  private  act  of  Parliament,  stating  spe- 
cifically what  property  could  be  taken  for  that  purpose.  Grad- 
ually various  classes  of  general  laws  were  passed  giving  this 
authority.  At  present  local  governments  have  the  general  right 
to  take  land  for  most  of  their  needs.17  Sometimes  they  can  do 
this  without,  more  often  with,  the  consent  of  the  local  gov- 
ernment board,  ratified,  practically  as  a  matter  of  course,  by 
Parliament.  All  these  laws  limit  the  taking  to  the  lands  neces- 
sary for  the  specific  enterprise.  Rarely  does  the  law  give  any 
general  authority  of  excess  condemnation;  practically  all  such 
authority  is  by  special  law.  If  the  power  is  desired  for  any 
particular  improvement,  the  practice  is  to  apply  for  a  special  law 
granting  the  right  not  only  of  ordinary  but  of  excess  condem- 
nation, and  designating  the  land  that  may  be  taken,  both  within 
and  without  the  lines  of  the  main  undertaking.18 

Until  1845  eacn  act  granting  the  power  of  condemnation 
for  any  given  enterprise  deemed  and  thus  declared  to  be  public, 
contained  clauses  stating  in  detail  what  property  should  be 
taken  and  what  rules  for  determining  the  compensation  should 
be  followed.  The  clauses  for  fixing  the  compensation,  as  they 
multiplied,  became  precedents,  and  were  called  the  "common 
clauses."  In  1845  these  clauses  were  codified  in  an  act  called 
the  "Land  Clauses  Consolidation  Act,"  19  now  referred  to, 

17  For  the  construction  of  new  streets  and  the  widening  of  old  ones 
in   the   built-up   parts   of    cities,   the   special   authority   of    Parliament   is 
almost  always  necessary. 

18  The  Development  and  Road  Improvement  Funds  Act,   1909,   (9  Ed- 
ward 7,  ch.  47)   gives  the  board  the  right,  with  some  limitations,  to  take 
land  on  either  side  of  a  proposed  road,  within  220  yards  of  its  centre; 
and  there  are  similar  laws  in  Canada;  see  p.  74. 

19  8  and  9  Viet.,  Ch.  18, 


72  Till.  I.A\V  OF  CITY  PLANNING  AND  ZOXING 

with  its  amendments  and  supplements,  as  the  "Land  Clauses 
Act."  20  This  codification  of  1845  was  made  to  avoid  the  neces- 
sity of  drawing  up  special  clauses  to  incorporate  in  each  con- 
demnation law.  It  is  deemed  a  part  of  every  such  law  except 
in  so  far  as  that  law  impliedly  or  specifically  excludes  it.  In 
the  Act  of  1845  were  inserted  rules  with  regard  to  "superflu- 
ous lands,"  or  lands  not  needed  for  the  main  improvement. 
Thus  the  Act  of  1845,  although  it  did  not  authorize  excess  con- 
demnation, nevertheless  recognized  and  provided  for  it;  and 
the  granting  of  this  power  in  England  by  special  and  private 
acts  dates  from  about  this  time. 

Land  in  the  neighborhood  of  a  public  improvement  is  thus 
condemned  in  England  both  to  guide  its  development  and  to 
profit  by  its  rise  in  value.  The  main  purpose  of  this  practice 
in  England,  however,  is  profit,  so  that  a  part  at  least  of  the 
cost  of  the  enterprise  may  be  recouped.  As  a  method  of  guid- 
ing neighborhood  development  excess  condemnation  seems  to 
have  been  fairly  successful  in  England;  as  a  means  of  recoup- 
ment its  success  is  harder  to  determine.21  In  many  cases  the 
bookkeeping  is  misleading.  For  instance,  the  initial  cost  of  the 
land  is  sometimes  in  part  written  off ;  and  in  some  cases  inter- 
est is  not  charged  on  the  cost  of  land  not  as  yet  sold.  Never- 
theless, there  has  been  a  decided  saving  by  the  use  of  this 
method,  in  spite  of  the  fact  that  English  law  and  practice 
impose  upon  its  exercise  many  conditions  which  interfere  with 
its  financial  success.  Some  of  these  onerous  conditions  are  the 
following : 

i.  Under  the  Land  Clauses  Consolidation  Act,  superfluous 
land  must  be  sold  within  ten  years  of  the  time  named  in  the 
act  of  condemnation  for  the  completion  of  the  work,  unless 
that  act  fixes  a  different  time  for  its  sale.  This  period  is  often 
too  short  to  allow  the  increment  to  accrue.  Moreover,  the 
nearer  the  expiration  of  the  time  limit  is,  the  greater  the  dis- 
advantage of  the  city  in  its  negotiations  with  purchasers. 

"See  Cripps  Law  of  Compensation  (4th  ed.).  p.   i. 

11  For  a  latr  opinion  mi  the  subject  see  the  English  Ministry  of  Re- 
construction: AV/'frf  c/  (  nnimittcc  c»  Acqttttition  and  I'aluatwn  of  Land 
for  Public  f'urposts,  1918. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  73 

Often,  too,  the  time  when  a  sale  becomes  imperative  proves 
peculiarly  unfavorable  for  disposing  of  real  estate.  This  clause 
is  frequently  modified  in  later  acts. 

2.  The  English  cities  did  not  make  it  a  practice  to  lease 
superfluous  lands  pending  their  sale.     In  this  way  carrying 
charges  and  interest  accumulated  without  any  income  to  meet 
them.     This  is  sometimes  concealed  by  the   failure,   already 
mentioned,  to  charge  interest;  but  such  bookkeeping  methods 
do  not  prevent  the  actual  loss  they  attempt  to  cover. 

3.  The  Act  of  1845  provides  that  if  the  scheme  involves 
the  demolition  in  any  one  parish  of  twenty  houses  or  more 
inhabited  by  persons  of  the  laboring  class,  there  must  be  pro- 
vision made,  if  it  is  lacking,  for  their  rehousing  in  the  vicinity. 
This  is  often  expensive,  especially  when  the  land  condemned  is 
better  suited  and  more  valuable  for  purposes  other  than  hous- 
ing.   This  clause  also  is  now  frequently  modified  or  excluded. 

4.  It  was,  until  1919,  the  custom  to  allow  the  land  owner, 
on  condemnation,  10  per  cent  over  and  above  the  market  price; 
but  in  takings  by  public  bodies  is  so  no  longer.22 

5.  In  some  cases,  as,  for  instance,  that  of  the  well-known 
Kingsway  improvement  in  London,  architectural  conditions  to 
enhance  the  dignity  of  the  street  have  been  imposed  on  pur- 
chasers of  land.     This,  if  carried  far,  tends  to  decrease  net 
returns  by  deferring  sales  of  land  or  lowering  its  price.    Much 
as  such  restrictions  may  improve  the  city's  appearance,  they 
may  be  a  source  of  serious  financial  loss  if  they  go  beyond  a 
moderate  minimum.23 

In  Canada,  Australia  and  India,  the  law  of  excess  and  zone 
condemnation  is  based  upon  English  precedent.24 

23  Acquisition  of  Land  (Assessment  of  Compensation)   Act,  1919. 

28  In  England  the  hearings  and  inquiries  incident  to  the  passage  of  a 
private  act  or  the  granting  and  confirmation  of  an  order  for  condemna- 
tion now  required,  give  to  the  proceedings  much  the  character  of  the 
French  expropriation.  For  a  good  account  of  the  English  procedure  see 
Ministry  of  Reconstruction;  Report  of  Committee  on  Acquisition  and 
Valuation  of  Land  for  Public  Purposes,  1918. 

24  Thus  in  these  countries  will  be  found  provisions  that  land  desirable 
for  the  use,  convenience  or  enjoyment  of  any  public  works,  may  be  con- 
demned.     (New   Zealand,    Public   Works   Act,    Consol.    Stats.    1908,   vol. 
IV,  no.   160,  sec.  29;   Queensland,   Public  Works,   Land   Resumption  Act 
of    1906,   Statutes,   191 1,  vol.  Ill,  p.  3608.     British   Columbia  has  passed 


74  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Changes  in  Method  of  Assessing  Compensation. — Re- 
cent changes  in  methods  and  principles  of  assessing  compensa- 
tion for  land  compulsorily  taken  in  England,  although  much 
less  thoroughgoing  than  advocated  by  a  recent  Royal  Commis- 
sion which  investigated  the  subject,25  are  certain  to  be  of  great 
importance  in  this  connection.  These  changes  are  embodied  in 
an  act  applicable  to  all  land  condemned  by  public  authorities  26 
and  in  an  amendment  to  the  Housing,  Town  Planning,  etc., 
Act,  lo/X).27  The  provision  in  the  Town  Planning  amendment 
for  the  compensation  of  owners  of  slum  areas  taken,  although 
it  is  similar  to  recent  Dutch  28  and  French  29  legislation  in  this 
respect,  is  to  us  startling  in  its  novelty.  Under  this  new  Eng- 
lish law  30  the  amount  to  be  so  paid 

"for  the  land,"  including  any  buildings  thereon,  shall  be  the  value  at 
the  time  the  valuation  is  made  of  the  land  as  a  site  cleared  of  build- 
ings" and  available  for  development  in  accordance  with  the  require- 
ments of  the  building  byelaws  for  the  time  being  in  force  in  the  dis- 
trict :  * 

a  "Land  Gauses  Consolidation  Act,"  based  on  the  English  statute.  See 
also  Revised  Statutes  Brit.  Columb.,  1911,  vol.  2,  ch.  128,  p.  1469).  Sas- 
katchewan allows  "adjoining"  land  to  be  taken  (The  Town  Act,  Stats. 
iyi6,  ch.  19,  sec.  208).  See  also  Ontario,  Revised  Statutes,  1914  (Munic. 
Corps.)  ch.  192,  sec.  322,  (2)  amended,  1921,  ch.  63.  Very  generally 
it  is  expressly  provided  that  land  not  needed  may  be  sold,  or  leased.  In 
New  Zealand  (Public  Works  Act,  Consol.  Stats,  vol.  IV,  p.  879,  sec.  85) 
and  Saskatchewan,  the  court  may  award  easements  and  surplus  land  in 
lieu  of  cash.  See  also  Halifax  City  Charter,  1914,  sec.  683.  698;  Mont- 
real Charter,  Art.  421  as  amended  by  Stats.  P.  Q.  1912  (3  Geo.  V),  ch. 
54,  sec.  20;  Toronto  Charter  as  amended  by  Stats.  Ont.  191 1,  ch.  119, 
No.  12;  see  also  Revised  Statutes,  ch.  192,  sec  322. 

"The  Ministry  of  Reconstruction  Report  on  Acquisition  and  Valua- 
tion of  Land  for  Public  Purposes,  1918,  already  referred  to. 

"The  "Acquisition  of  Land  (Assessment  of  Compensation)  Act," 
1919,  already  referred  to. 

Housing,  Town  Planning,  etc.  Act,  1919;  see  p.  499  of  this  work. 

"Holland,  Housing  Law  of  June  22,  1901;  see  p.  495  of  this  work. 

"Law  of  June  17,  1915,  see  p.  76  of  this  work. 

"  Sec.  9  and  first  schedule. 

11 1.  e.,  the  slum  land ;  where  adjacent  land,  in  a  sanitary  condition,  is 
included  to  secure  the  efficiency  of  the  scheme  as  a  whole  (as  it  may  be, 
— see  this  section  in  full,  p.  518  of  this  work)  it,  and  the  buildings  on  it, 
are  paid  for  in  full. 

"I.  e.,  no  payment  is  made  for  the  insanitary  buildings,  to  be  de- 
stroyed. 

"I.e.,  for  buildings  to  be  constructed  in  accordance  with  tin- 
structural    regulations,  and   with   the  open   spaces   now   required   for  the 
access  of  light  and  air. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  75 

"Provided  that,  if  in  the  opinion  of  the  Local  Government  Board 
it  is  necessary  that  provision  should  be  made  by  the  scheme  for  the 
re-housing  of  persons  of  the  working  classes  on  the  land  or  part 
thereof  when  cleared,34  or  that  the  land  or  a  part  thereof  when  cleared 
should  be  laid  out  as  an  open  space,  the  compensation  .  .  .  shall  be 
reduced" 

by  an  amount  equal  to  the  necessary  expenses  of  such  rehousing 
and  of  laying  out  such  open  spaces.35 

It  seems  clear  that  this  provision  of  the  English  statute 
is  just  to  the  land  owner,  and  that  the  former  statutes  in 
England  or  elsewhere  giving  him  a  greater  compensation  are 
unjust  to  future  tenants  of  such  land  and  to  the  public.  The 
land  with  the  buildings  on  it  are  taken  by  the  state  because  the 
buildings  are  unsanitary  in  themselves  and  occupy  an  undue 
proportion  of  the  lot,  thus  leaving  an  amount  of  open  space  for 
the  access  of  light  and  air  insufficient  for  health;  the  state  is 
therefore  in  duty  bound  to  prevent  the  further  use  of  the  prop- 
erty in  its  present  condition;  as  a  prerequisite  to  such  use  it 
may  therefore  with  justice  to  the  owner,  and  must  in  justice  to 
the  community,  require  him  to  put  the  premises  into  sanitary 
condition,  and  in  taking  the  property  to  make  it  sanitary,  has 
the  legal  and  moral  right,  as  a  method  of  making  the  owner 
pay  for  so  doing,  to  deduct  the  cost  from  the  compensation  paid 
him  for  his  realty.36 

Excess  and  Zone  Condemnation  in  France  Since  1850. 
— The  movement  in  France  which  resulted  in  an  enlargement 
of  the  limited  right  of  expropriating  remnants  first  to  be  found 
in  the  law  of  1807,  already  mentioned,  and  also  in  zone  condem- 

84 The  "principal  act"  (Housing  of  Working  Classes  Act,  1890)  re- 
quires such  rehousing  in  certain  cases,  it  being  considered  wrong  to  tear 
down  the  slum-dweller's  home  without  providing  him  with  another. 

K  With  regard  to  this  section  see,  generally,  p.  386  of  Law  and  Prac- 
tice of  Housing  (Hodder  and  Stoughton,  London,  1921)  by  Sir  Kingsley 
Wood. 

38  In  this  connection  the  following  provision  of  the  Acquisition  of 
Land  (Assessment  of  Compensation)  Act,  1919  (9  and  10  Geo.  5,  ch.  57) 
is  of  importance : 

2.  (4)  "Where  the  value  of  the  land  is  increased  by  reason  of  the 
use  thereof  or  of  any  premises  thereon  in  a  manner  which  could  be 
restrained  by  any  court,  or  is  contrary  to  law,  or  is  detrimental  to  the 
health  of  the  inmates  of  the  premises  or  to  the  public  health,  the  amount 
of  that  increase  shall  not  be  taken  into  account :"  [in  fixing  the  compensa- 
tion to  be  paid  the  owner,  etc.] 


76  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

nation,  originated  in  the  desire  of  Napoleon  III  to  improve 
Paris ;  as  a  result  of  which  he  caused  two  statutes  to  be  passed 
in  aid,  one  of  the  sanitation,  the  other  of  the  beautification,  of 
the  city. 

The  statute  of  Napoleon  III,  for  the  sanitation  of  Paris 
and  other  cities  in  France,  was  passed  April  13,  i85O.37  It 
provides  that  where  the  unhealth fulness  of  a  dwelling  for  hire 
situated  on  a  given  lot  is  the  result  of  permanent  causes  outside 
the  building,  or  where  the  causes  cannot  be  removed  except 
by  an  improvement  embracing  both  dwelling  and  outside  con- 
ditions, the  commune  may,  under  the  general  condemnation  law 
of  the  state,38  expropriate  the  entire  lot,  selling  remnants  at 
public  auction.39  This  statute,  which  did  not  materially  enlarge 
the  right  of  condemning  remnants,  relates  only  to  lots  abutting 
on  a  public  highway  with  dwellings  for  hire  on  them,  and 
proved  to  be  of  little  use.  It  was,  therefore,  repealed  and  re- 
placed by  the  statute  of  February  15,  1902.*°  This  law  (sec. 
18)  reenacts,  practically  word  for  word,  the  law  of  1850,  except 
that  it  is  made  to  apply  to  realty  for  hire  or  occupied  by  the 
proprietor,  built  up  or  not,  whether  abutting  on  the  highway  or 
otherwise.  The  statute  of  1902  proved  to  be  no  more  useful 
than  its  predecessor  and  has  been  invoked  only  in  two  cases  of 
comparatively  small  importance,  for  the  reason  that  the  pro- 
visions of  the  general  condemnation  law  and  the  traditions  gov- 
erning the  conduct  of  juries  under  it  involve  too  heavy  an 
expense.  The  law  of  June  17,  1915  41  was  accordingly  passed, 
which  enlarges  the  scope,  simplifies  the  procedure  and  lessens 
the  cost  of  expropriation  for  sanitation.  This  statute  is  the 
first  zone  condemnation  law  of  real  importance  in  France.42 
The  law  gives  communes  the  right  to  condemn  entire  insani- 

"  Bulletin  des  his.  X'  serie,  Bull.  252,  No.  2068. 

"The  law  of  May  3.  1841 ;  sec  p.  91,  ff. 

**  As  a  rule,  in  such  cases,  the  former  owners  are  given,  under  Art. 
60-61  of  the  Act  of  1841.  the  preferential  right  to  acquire  such  rem- 
nants. The  sale  in  the  present  case,  however,  is  free  from  this  prefer- 
ential risht. 

*  Bulletin  des  his.  XII'  ser..  Bull.  2348.  No.  41496. 

*  Bulletin  dts  his,  nouv.  sir.  Bull.  156,  No.  8736. 

"The  statute  is  not  called  a  statute  of  zone  condemnation  in  France; 
the  first  law  there  to  he  so  considered  being  that  of  November  16,  1918, 
mentioned  below. 


EXCESS   CONDEMNATION   ETC.  IN   EUROPE  77 

tary  tracts  or  districts,  in  which  lots  in  themselves  sanitary  may 
be  included  if  necessary  for  the  success  of  the  undertaking  as  a 
whole.  The  price  of  the  insanitary  lots  is  fixed  at  their  market 
value  less  the  cost  of  making  them  sanitary ;  or,  if  this  cannot 
be  done,  at  the  value  of  the  land  cleared  of  buildings,  plus  the 
value  of  the  materials  in  the  buildings.  The  future  use  of  lots 
not  put  to  public  use,  and  the  conditions  subject  to  which  the) 
shall  be  sold,  are  also  fixed.  In  no  case  shall  the  value  placed 
upon  a  piece  of  realty  expropriated  be  less  than  that  of  the 
land  without  buildings;  in  no  case  shall  compensation  be  in- 
creased because  dispossession  is  involuntary.  If  any  tenant 
deprived  of  his  property  is  carrying  on  an  offensive  industry 
under  special  license,  and  that  industry  is  a  cause  of  the  existing 
bad  sanitation,  his  damages  shall  be  reduced  by  a  sum  equal 
to  the  profits  obtained  at  the  expense  of  the  public  health.  The 
indemnity  of  the  other  tenants  for  eviction  shall  be  a  sum  equal 
to  three  months'  rent,  but  in  no  case  less  than  f3O  or  more  than 
fioo.  For  expropriation  under  this  statute  a  simplified  pro- 
cedure of  its  own  is  provided. 

The  decree-law  43  of  March  26,  1852  44  was  promulgated 
by  Napoleon  III,  as  an  independent  provision,  to  escape  from 
the  narrow  limits  of  the  general  power  of  excess  condemnation 
under  the  law  of  1841, 45  which  the  Emperor  found  such  a 
hindrance  in  his  plans  for  the  beautification  of  Paris.  The  law, 
which  applies  not  only  to  Paris  but  to  such  other  French  cities 
as  have  asked  that  it  be  extended  to  them,  provides  (art.  2) 
that  in  the  enlargement,  rectification  or  laying  out  of  streets, 
the  city  shall  have  the  right  to  take  the  whole  of  a  lot,  any  part 
of  which  is  within  the  new  street  lines,  if  the  remnant  is  not 
of  a  size  or  form  to  permit  of  the  erection  on  it  of  healthful 
structures,  and  also  if  necessary  for  the  suppression  of  old 
highways.  These  remnants  falling  outside  the  new  lines  may 
be  reunited  with  the  neighboring  properties  by  private  con- 
tract or  under  the  provisions  of  the  law  of  1807  already 
referred  to.  Originally  under  this  statute  the  city  was  the 

45  Decret. 

**  Bulletin  des  lots,  Xe  ser,  Bull.  514,  No.  3914. 

"Bulletin  des  lots,  IXe  ser,  Bull.  808,  No.  9285. 


78  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

judge  of  the  expediency  and  propriety  of  appropriating  rem- 
nants; but  a  decree  of  December  27,  i858,48  provided  that  in 
case  the  person  expropriated  objected,  a  decree  of  public  utility 
from  the  state  authorities  was  needed  as  in  other  cases  of  ex- 
propriation; and  on  June  14,  1876  47  a  second  decree  made  the 
same  requirement  even  if  there  was  no  such  objection. 

As  originally  interpreted  by  the  city  authorities  in  their 
own  favor,  the  law  of  1852  gave  them  a  fairly  ample  authority ; 
and  under  it  large  tracts  of  land  were  taken  on  the  ground  that 
they  were  remnants  upon  which  healthful  structures  could  not 
be  built.  In  this  way,  also,  the  policy  of  taking  land  for  resale 
at  a  profit  was  followed  with  some  success.  It  was  during  this 
period  that  practically  all  the  applications  by  cities  other  than 
Paris  for  the  extension  of  the  law  to  them  were  made.  The 
decisions  of  the  state  authorities  under  the  decrees  of  1858  and 
1876,  however,  greatly  restricted  these  powers.  The  maximum 
size  of  the  remnants  that  could  be  condemned  as  compared  to 
those  that  were  formerly  taken  became  very  small ;  and  resale 
at  a  profit,  never  a  legal  ground  for  expropriation,  became  prac- 
tically impossible.  In  consequence,  a  demand  for  a  further 
revision  of  the  statute  of  1852  arose,  and  the  amendment  of 
July  13,  1911  48  and  law  of  April  10,  I9I2,49  were  passed. 
Under  them,  cities  may  condemn  remnants  not  only  when  they 
are  not  of  a  size  or  form  permitting  the  erection  of  a  sanitary 
building,  but  when  the  building  would  not  be  in  keeping  with 
the  importance  of  the  highway  or  with  its  aesthetics;  a  rem- 
nant may,  in  any  case,  be  taken  compulsorily  when  it  is  not 
more  than  150  square  metres  in  size  and  whenever  the  public 
works  occupy  more  than  half  the  lot;  and  with  the  consent  of 
the  owner  remnants  of  any  size  may  be  acquired. 

The  statutes  of  1911  and  1912,  except  for  the  greater  lati- 
tude granted  when  the  owner  consented  to  the  excess  taking, 
were  merely  a  meagre  enlargement  of  the  previous  right — all 
that  France  in  law  had  ever  possessed — to  condemn  remnants 
on  the  ground  that  they  were  not  suitable  sites  for  buildings. 

"Bulletin  des  lots,  XI'  ser,  Bull.  656.  No.  6111. 

"Bulletin  des  lots,  XII'  ser,  Bull.  305.  No.  ' 

"Being  Article  118  of  the  so-called  "Loi  des  Finances"  (No.  2933). 

"Bulletin  des  lois,  nouv.  sir.  Bull.  79,  No.  3950. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  79 

A  recent  statute,  passed  November  6,  19 18,50  transforms  a 
power  which  was  smaller  in  France  than  that  of  most  European 
nations  into  one  greater  than  that  to  be  found  in  any  other 
country.61 

The  statute  of  1918,  unlike  the  previous  statutes,  is  an 
amendment  of  the  general  condemnation  law.  It  provides 
(amended  art.  2)  that  not  only  land  within  the  lines  of  pro- 
posed public  works  but  all  land  recognized  as  necessary  to 
assure  to  these  works  their  full  value,  immediate  or  future,  may 
be  declared  of  public  utility  and  expropriated ;  especially  land  in 
a  city  outside  street  lines,  interfering  with  a  rational  subdivi- 
sion into  lots  or  not  susceptible  of  use  as  the  site  of  structures 
in  accord  with  the  general  plan  of  the  public  works  contem- 
plated; also  (art.  2  bis}  land  which,  by  reason  of  its  proximity 
to  a  proposed  public  work,  should  yield  an  increased  value  of 
more  than  1 5  per  cent.  The  owner  of  land  to  be  taken  for  its 
increased  value  may  retain  it  by  paying  a  sum  equal  to  that 
increase.  A  decree  of  the  state  authorities  declaring  its  public 
utility  is  necessary  in  all  cases  of  excess  taking.52 

Excess  and  Zone  Condemnation  in  Belgium. — The  law 
of  Belgium  on  the  subject  of  excess  and  zone  condemnation 
was  for  many  years  distinctly  in  advance  of  that  of  France. 
The  Belgian  law  of  July  i,  i858,53  allowed  excess  condemna- 
tion for  sanitation  in  connection  with  street  construction.  On 
November  15,  1867,  that  law  was  amended  so  as  to  permit 
zone  condemnation  in  aid  of  practically  all  plans  for  city  con- 
struction and  improvement.54  The  amended  law  provides  that: 

"Art.  I.  When  a  plan  for  the  improvement,  as  a  whole  or  in  part, 
of  an  old  section  of  a  city,  or  the  construction  of  a  new  section,  is 

"Bulletin  des  lots,  nouv.  ser,  Bull.  237,  No.  13222. 

81  Important,  but  too  special  to  interest  us,  are  the  reforms  made  by 
this  law  in  the  jury  system  as  applied  to  condemnation  proceedings  in 
France. 

M  In  France  condemnation  under  the  law  of  1918  is  called  zone  con- 
demnation because  a  belt  or  zone  of  land  may  be  taken  on  each  side  of  a 
proposed  improvement;  and  taking  under  the  law  of  June  17,  1915,  is  not 
so  referred  to ;  but  to  save  confusion  the  definitions  already  given  in 
this  work  have  been  adhered  to  in  all  cases. 

63  Pasinomie  des  Lois,  1858,  p.  217. 

84  See  the  reports  accompanying  the  law  when  proposed  in  "Pasinomie 
des  Lois"  for  1867,  p.  287. 


80  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

proposed,  the  government,  on  petition  of  the  Communal  Council,  may 
authorize  the  expropriation  under  the  laws  of  March  8,  1810,  and 
April  17,  1835,  of  all  lands  destined  for  highway  or  other  public 
uses,  including  lands  for  structures  which  are  a  part  of  the  general 
plan.  .  .  ." 

There  are  provisions  for  the  condemnation  and  sale  of 
remnants.  The  project  is  subject  to  the  approval  of  the  king.55 

Zone  Condemnation  in  Italy. — At  about  this  time, — June 
25,  1865 — Italy  passed  its  expropriation  la\v,:'tl  which  is  also 
a  zone  condemnation  and  city  planning  act.  This  statute  states 
perhaps  more  happily  than  any  other  the  purpose  of  zone  con- 
demnation, as  follows : — 

"Art.  22.  There  may  be  included  in  the  condemnation  not  only 
the  land  that  itself  is  necessary  to  the  execution  of  the  public  work, 
but  also  the  lands  lying  within  a  given  zone,  whose  inclusion  directly 
helps  to  accomplish  the  chief  object  of  said  work.  The  right  to 
condemn  the  contiguous  lands  must  be  stated  expressly  in  the  decree 
which  establishes  the  public  use  or  be  given  by  supplemental  royal 
order." 

Influence  of  English  Housing  Reforms. — In  the  adop- 
tion of  her  excess  and  zone  condemnation  laws  Belgium  was 
evidently  influenced  by  the  similar  but  more  conservative  and 
restricted  legislation  of  France.  England,  however,  contrib- 
uted in  no  small  measure  to  this  result.  The  English  zone  con- 
demnation law  was  not  passed  until  later,  but  her  endeavors  to 
secure  housing  reform  had  begun  long  before.  Modern  indus- 
trialism started  in  England.  The  conditions  of  modern  indus- 
trialism produce  the  large  city,  which  in  its  unregulated  growth 
seems  inevitably  to  produce  the  slums.  England,  being  the 
first  nation  brought  face  to  face  in  its  slums  with  modern  hous- 
ing evils  in  an  acute  form,  was  the  first  conscientiously  to  inves- 
tigate and  attempt  a  solution  of  the  slum  problem  and  of  mod- 
ern housing  problems  generally.  This  movement  profoundly 
influenced  industrial  Belgium,  and  all  Europe. 

"In  Germany  minor  remnants  are  eliminated  and  petty  readjustments 
of  boundaries  obtained  under  the  police  power,  the  owner  heitiR  required 
to  consent  as  a  condition  to  the  issuance  of  a  building  permit.  See  p. 
488  of  this  work. 

"Sec  pp.  465,  ff  of  this  work. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  81 

The  first  of  the  long  series  of  modern  English  laws  for  the 
elimination  of  insanitary  housing  57  were  the  Lord  Shaftesbury 
acts,  two  in  number,  both  passed  in  1851.  The  earlier  of  these 
laws  (14  and  15  Viet.  ch.  28)  deals  with  the  occupancy  of  what 
we  in  America  call  lodging  houses.  The  later  one  (14  and  15 
Viet  ch.  34)  provides  for  the  building  by  municipalities  of 
houses  for  the  working  classes,  and  the  purchase  of  land,  if 
necessary,  for  that  purpose.  An  investigation,  begun  in  1844, 
had  shown  unmistakably  the  intolerable  overcrowding,  the 
great  lack  of  light  and  air,  the  wretched  construction  and  repair 
of  whole  districts  in  the  large  cities.  A  sufficient  supply  of 
new  houses,  it  was  thought,  would  remedy  these  evils ;  and  the 
second  Lord  Shaftesbury  act  was  passed  for  that  purpose. 

Whatever  benefit  the  new  municipal  houses — the  few  that 
were  built — proved  to  be  to  those  who  succeeded  in  securing 
them  to  inhabit,  they  did  not  make  unnecessary  the  use  of  the 
old  slum  houses,  nor  better  their  condition.  An  improvement 
was  attempted  in  the  Torrens  Act  of  1868  (31  and  32  Viet.  ch. 
130).  That  law  required  the  owner  to  repair,  or  tear  down 
and  rebuild,  houses  declared  by  the  authorities  to  be  uninhabit- 
able. 

But  the  Torrens  act  was  not  a  sufficient  remedy  and  still  the 
slum  remained.  The  repairing  or  tearing  down  of  a  house  here 
and  there,  even  the  permanent  removal  of  some  houses  that 
most  obstructed  the  light  and  air  of  the  rest,  was  not  enough  to 
do  away  with  the  slum  evil;  for  a  cause  of  the  persistence  of 
the  slum  was  the  condition  of  the  district  as  a  whole  with  its 
narrow,  crooked  streets  and  small  shallow  lots.  This  could  be 
remedied  only  by  tearing  down  all  the  houses,  throwing  lots 
and  streets  into  a  common  mass  and  replanning  the  district 
entirely. 

The  first  legislation  to  deal  with  slum  areas  in  this  way  was 
the  well-known  Cross  act  (38  and  39  Viet.  ch.  36)  passed  in 
1875.  Under  it  the  municipality  could  take  title  to  any  such 
tract  as  an  unhealthy  area,  destroy  all  existing  buildings,  relo- 
cate the  streets,  lay  out  proper  house  lots  on  them,  and  provide 

87  Only  a  few  of  the  principal  acts  are  cited  in  this  brief  summary. 


82  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

for  suitable  houses  there.  The  act  is  popularly  called  the 
"Unhealthy  Areas  Act"  and  is  now  included  in  Part  I  of  the 
"Housing,  Town  Planning,  etc.,  Act,  1909."  58  It  is  the  first 
English  zone  condemnation  law.  It  contains  provisions  which 
specifically  authorize  the  condemnation  of  land,  not  perhaps  it- 
self insanitary,  which  renders  contiguous  land  unhealthful  or 
prevents  its  proper  sanitation.  The  English  act  is  not  the  first 
to  accomplish  this  result.  Such  land  could  undoubtedly  be  in- 
cluded in  the  condemned  area  under  the  Belgian  act  of  1867; 
indeed,  that  act  was  passed  in  part  for  that  very  purpose.69 
Nevertheless,  the  specific  provisions  of  the  English  law  have 
had  their  influence. 

Another  widely  copied  clause  in  what  is  now  Part  I  of  the 
act  of  1909,  authorizes  the  destruction  of  an  "obstructive  build- 
ing" which  is  defined  to  be  a  building  that 

"although  not  in  itself  unfit  for  human  habitation,  is  so  situate  that 
by  reason  of  its  proximity  to  or  contact  «with  any  other  buildings  it 
causes  one  of  the  following  effects,  that  is  to  say : — 

"(a)  It  stops  or  impedes  ventilation,  or  otherwise  makes  or  con- 
duces to  make  such  other  buildings  to  be  in  a  condition  unfit  for 
human  habitation  or  dangerous  or  injurious  to  health;  or 

"(&)  It  prevents  proper  measures  from  being  carried  into  effect 
for  remedying  any  nuisance  injurious  to  health  or  other  evils  com- 
plained of  in  respect  of  such  other  building.'" 

The  elimination  of  insanitary  areas  in  English  cities  is 
much  too  large  a  subject  to  be  treated  adequately  here.  There 
can  be  no  question  of  the  existence  of  the  evil  or  of  the  fact 
that  the  remedies  used  have  improved  conditions  in  the  section 
of  the  city  where  they  were  applied ;  but  to  what  extent  were 
conditions  bettered  in  the  city  as  a  whole?  A  vast  amount  of 
money  has  been  spent,  and  it  is  generally  believed  that  the  result 
has  not  been  in  proportion  to  the  amount  expended.  To  what 
extent  have  the  methods  adopted  been  responsible  for  this  fact  ? 

In  the  first  place,  for  many  years  insanitary  housing  condi- 

"The  English  Unhealthy  Areas  Act  is  given  in  full  on  p.  88  of  this 
work. 

'  See  p.  79 

*Such  a  building  may  be  pulled  down  under  Part  II  of  the  act  of 
1800,  as  an  "unhealthy  dwelling  house"  (53  and  54  Viet  ch.  70). 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  83 

tions  were  removed  at  public  cost  with  no  adequate  legal 
methods  of  preventing  a  recurrence  of  the  evil.  The  result  was 
much  useless  expense;  for  under  these  circumstances  no  per- 
manent cure  could  be  expected.  Slum  removal  without  proper 
regulation  of  building  and  of  lot  subdivision  is  of  little  lasting 
value. 

Secondly,  slum  removal  was  tried  without  a  proper  consid- 
eration of  the  interests  and  resources  of  the  city  as  a  whole. 
The  slum  district  chosen  should  have  been  studied  and  put  to 
the  use  for  which  it  was  most  valuable  and  best  suited;  the 
location  for  rehousing  should  have  been  selected  where  land 
was  cheap  and  healthful  and  proper  transportation  to  it,  if  nec- 
essary, provided.  Thus  the  city,  instead  of  being  burdened 
with  debt,  might  have  been  made  more  prosperous  by  additional 
facilities  and  population  where  they  could  be  made  useful. 
Instead,  the  law  required  the  rehousing  of  the  people  dispos- 
sessed near  their  old  homes,  and  the  former  slum  area  was 
predestined  to  be  used  again  for  housing.  Certainly  there  is 
no  presumption  that  a  use  for  which  the  area  has  proved  a 
failure  is  that  to  which  it  is  best  adapted,  much  less  that  it  is 
the  best  area  that  can  be  selected  for  the  purpose. 

Of  course,  such  districts  may  always  be  made  suitable  for 
housing,  just  as  they  may  be  converted  into  botanical  gardens 
or  marine  parks — by  a  tour  de  force.  Private  capital  will  not 
undertake  such  an  enterprise;  therefore,  municipalities  in  many 
cases  have  done  so.  Is  it  strange  that  they  have  spent  a  great 
deal  of  money,  obtained  a  financial  return  disproportionate  to 
the  outlay,  and,  relatively  to  the  size  of  the  slum  evil  in  Eng- 
land, done  very  little  good?  Slum  elimination  without  city 
planning  is  expensive  and  ineffective.61 

Replotting  in  Switzerland  and  Germany. — The  plot- 
ting, and  consequently  the  replotting,  when  necessary,  of  build- 
ing land  under  governmental  supervision,  is  a  logical  extension 
of  the  public  regulation  of  the  planning  of  streets  and  buildings. 
To  a  considerable  extent  the  form  and  area  of  a  lot  determine 
the  form  of  the  building  which  will  be  erected  on  it,  and  the 

81  Statutes  and  ordinances  of  excess  and  zone  condemnation,  are  to  be 
found  in  Germany;  for  references  see  p.  87,  Note  74. 


84  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

amount  of  light  and  air  that  those  who  live  or  work  in  it  will 
receive.  To  a  considerable  extent  the  street  system  of  a  city 
is,  or  should  be,  laid  out  in  order  to  obtain  blocks  that  will  sub- 
divide into  lots  of  proper  form  and  area.  To  some  degree 
building  regulation,  by  requiring  vacant  spaces  on  the  lot  in 
certain  locations  and  proportions  with  relation  to  structures, 
also  determines  the  size  and  shape  of  lots.  The  actual  sub- 
division of  the  block  into  lots  under  public  supervision  is  the 
next  step,  and,  like  the  block  division  resulting  from  street 
planning  and  the  area  requirements  of  building  regulation,  its 
object  is  the  improvement  of  housing  and  working  conditions. 

To  some  extent  European  law  regulates  the  plotting  of 
building  land.  Thus  in  some  of  the  German  states  lots  may  be 
declared  unsuited  to  building  62  and  the  authorities  may  require 
the  land  owner,  as  a  prerequisite  to  the  issuance  of  a  building 
permit,  to  buy  or  sell  small  remnants,  necessary  to  round  out 
his  or  his  neighbors'  lots.68 

The  next  step  is  the  direct  control  of  subdivision,  which 
exists  in  a  few  places.  Thus  in  Vienna  fl4  a  plat  or  plan  of  lot 
subdivision  must  be  filed  with  the  authorities  and  receive  their 
approval  before  subdivision  is  allowed;  in  Zurich,  Switzer- 
land,65 the  owners  of  land  between  main  streets  are  required 
to  submit  a  local  plan  showing  minor  streets  and  the  plotting 
of  all  land  in  the  locality;  and  if  they  do  not  do  so,  the  authori- 
ties establish  such  a  plan  after  the  land  owners  have  been  given 
an  opportunity  to  be  heard  with  regard  to  it ;  and  in  Sweden  e6 
the  subdivision  of  building  land  into  lots  is  an  essential  part  of 
the  city  plan  made  by  the  authorities,  required  in  advance  of 
building  development.67 

"Htiffner,   Wiirttcmberg  Building  Ordinance    (Tubingen,    1912),  p.  84, 
note  4.  end. 

"Dresden,  Strassenbauordnung,  sec.  29;  Leipsig,  Ortsbauordnung, 
1897.  sec.  34,  Saxony,  General  Building  Law  of  July  I.  1900,  as 
amended  May  20,  1904,  sec.  66,  a  translation  of  which  will  be  found  on 
p.  474  of  this  work;  \Yurttemberg,  Building  Ordinance  of  July  28,  1910, 
sec.  26 

'Building  Ordinance  of  January  17,  1883,  sec.  3,  (L.  G.  Bl.  No.  35). 
Building  Law  of  April  23,  1893. 
**  Planning  Law  of  August  31.  1907. 

"The  schemes  under  the  British  planning  acts,  and  the  acts  modeled 
on  them,  in  Canada,  Australia  and  India  more  and  more  include  pro- 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  85 

If  it  is  for  the  public  interest  that  building  land  should  be 
properly  subdivided,  evidently  the  public  should  not  only  super- 
vise plotting,  but  require  and  aid  replotting  when  plotting  is 
found  to  be  faulty.  In  a  few  jurisdictions  this  may  be  done  by 
eminent  domain ;  68  but  when  so  accomplished  the  public  au- 
thorities must  take  and  pay  for  the  land  to  be  replotted,  recover- 
ing the  money  by  its  resale.  This  involves  a  serious  disturb- 
ance of  private  rights,  and  commits  the  public  to  a  long  and 
expensive  real  estate  transaction.  When,  however,  replotting 
is  done  under  the  police  power,  the  owners  retain  title  to  an  un- 
divided share  of  the  common  mass,  and  are  reimbursed  by  a 
new  lot  equivalent  to  the  lot  contributed  by  them,  thus  avoiding 
the  disadvantages  incident  to  replotting  by  eminent  domain. 
The  prerequisites  to  the  starting  of  the  proceeding  vary,  a 
petition  signed  by  a  given  percentage  of  the  owners  reckoned 
in  proportion,  sometimes  to  their  number,  sometimes  to  the 
area  of  their  land,  sometimes  to  its  value,  being  required. 
Almost  invariably,  however,  it  is  essential  that  the  public 
authorities  find  the  proceeding  to  be  in  the  public  interest ;  the 
profitable  and  economical  development  of  building  land,  tend- 
ing to  produce  cheaper  and  more  abundant  building  lots,  being 
in  all  cases  regarded  as  sufficient  public  advantage. 

Replotting  is  especially  useful  in  the  outskirts  of  cities. 
This  is  peculiarly  the  case  in  Germany.  In  many  Continental 
countries,  Germany  among  them,  agricultural  land  came  in  the 
course  of  centuries  to  be  subdivided  minutely  or  into  long,  very 
narrow  strips.  This  made  cultivation  difficult  and  expensive; 
and  for  many  years  before  replotting  of  building  land  was 
resorted  to,  agricultural  land  was  replotted  to  overcome  these 
difficulties.  Often  the  object  sought  was  not  the  mere  reloca- 
tion of  boundaries  so  much  as  the  aggregation  of  small  hold- 
ings into  lots  of  reasonable  size.69  German  cities  in  their 

visions  for  a  greater  or  less  amount  of  replotting.  For  references  to 
these  Acts  see  pp.  498,  ff. 

63  Thus  in  Hesse  (arts.  16-18  of  the  law  of  July  15,  1895,  with  regard 
to  the  extension  of  the  city  of  Mayence;  and  General  Building  Ordinance 
of  April  30,  1891,  Art.  13,  59,  69)  the  city  may  forbid  all  building  on  land 
faultily  subdivided  and  has  the  right  to  expropriate,  replan  and  sell  it. 

80  See,  for  instance  the  Saxon  laws  of  June  14,  1834  and  July  23,  1861. 
Similar  laws  were  enacted  in  Prussia  and  other  German  states.  This 


86  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

growth  have  now  encroached  upon  surrounding  agricultural 
land,  which  often  has  not  been  replotted  for  agricultural  pur- 
poses. Where  the  replotting  of  building  land  under  govern- 
mental supervision  has  not  as  yet  been  introduced,  great  expense 
is  incurred  by  developers  in  aggregating  small  holdings -so  as  to 
obtain  lots  large  enough  to  divide  and  sell  as  building  lots. 
This  expense  is,  of  course,  added  to  the  selling  price  of  the 
land ;  and  the  avoidance  of  this  waste  has  been  one  of  the  great 
advantages  of  replotting  statutes,  both  to  land  owners  and  to 
the  public. 

Replotting  is  sometimes  useful  in  the  more  central  parts  of 
the  cities.  This  is  especially  so  when  some  disaster  has  de- 
stroyed the  buildings  and  given  an  opportunity,  not  otherwise 
available,  for  much  needed  replanning,  and  the  readjustment  of 
private  property  lines  without  which  replanning  would  be  im- 
possible. In  this  way,  the  Hungarian  city  of  Szegadin,  partly 
destroyed  by  flood,  was  replanned  by  a  state  commission  in 
1879,  and  the  Prussian  city  of  Brotterode,  ravaged  by  fire,  was 
replanned  by  royal  order  issued  October  30,  1895.™  It  is  sel- 
dom possible  to  undertake  work  of  this  sort  without  general 
legislation,71  in  the  absence  of  which,  opportunities  that  prob- 
ably will  never  return  are  wasted,  and  gains  that  might  have 
been  wrested  from  the  catastrophe  escape  never  to  be  recovered. 

Perhaps  the  first  jurisdiction  to  make  use  of  the  police 
power  for  replotting  building  land  and  enact  an  adequate,  com- 
prehensive law  to  accomplish  it,  was  the  Canton  of  Zurich, 
Switzerland.  This  it  did  as  a  part  of  its  Building  Law  of 
April  23,  1893.  Under  this  law  replotting  of  the  tract  in 
question,  if  for  the  public  interest,  may  be  undertaken  by  the 

uniting  of  small  holdings  and  replanning  them  has  been  very  extensive. 
Emil  Klar.  in  his  pamphlet  (printed  for  him  by  Gebriider  Kna'tu-r.  Frank- 
fort on  the  Main)  states  that  in  Prussia  twenty  and  one-half  million 
hektars,  or  three-fifths  of  the  territory  of  the  kingdom,  the  property  of 
over  two  million  owners,  was  thus  replanned.  See  also  a  recent  French 
law.  cited  on  p.  514  of  this  work :  and.  Kent-rally,  an  article  by  Dr.  Richard 
T.  Ely  in  the  American  Economic  Review,  March,  1911,  entitled  "Rus- 
sian I-and  Reform  " 

*Gescts  Sammlung  or  Collecti"n  r,f  Laws  of  Prussia  for  1895,  p.  551, 
approved  by  the  law  of  April  26,  1896  ((it-sets  Samml»n<j,  p.  82). 

<ler  such  general  legislation  sprrial  commissioners,  to  do  the  work 
in  special  cases,  are  often  provided  for. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  87 

authorities  on  their  own  motion  or  on  petition  of  the  land 
owner;  and  the  authorities  shall  replot  if  a  petition  to  do  so  is 
filed  by  a  majority  in  number  of  the  land  owners  who  also  own 
more  than  half  the  area  involved.  The  procedure  is  to  throw 
the  land,  including  the  streets  and  other  public  areas,  into  a 
common  mass,  deduct  the  areas  for  public  uses,  replan  and  re- 
subdivide  the  area,  and  return  the  remainder  of  the  private  land 
to  the  original  owners,  so  far  as  possible,  in  the  same  propor- 
tion in  value  as  that  in  which  it  was  contributed,  minor  ad- 
justments being  made  in  cash.  There  must  be  an  established 
street  or  building  plan  for  the  area  before  replotting  is  begun. 
There  are  now  many  replotting  statutes  in  Switzerland,72 
Austro-Hungary  73  and  Germany,  more  or  less  similar  to  the 
Zurich  law.74  Perhaps  the  most  important  modern  replotting 
statutes  are  to  be  found  in  Hamburg,  Baden,  Saxony  and  Prus- 
sia.75 The  Prussian  law,  called  the  "Lex  Adickes"  after  its 
author,  the  famous  Chief  Biirgermeister  or  Mayor  of  Frank- 
fort-on-the-Main  is  the  most  detailed.  Probably  the  greatest 
accomplishment  of  that  statute  has  been  the  encouragement  it 
has  given  to  voluntary  replotting,  now  so  common  in  Frank- 
fort as  to  render  an  actual  resort  to  the  law  unusual;  for  the 
existence  of  the  law  makes  it  impossible  any  longer  in  that  city 
for  one  or  two  crafty  land  owners,  with  a  view  to  being  bought 
off,  to  block  an  improvement  which  is  for  the  advantage  of  the 
land  owners  as  a  whole,  and  of  the  entire  community.76 

72  See  with  regard  to  replotting  in  Switzerland,  Fehr,  Die  Grunds'dtze 
des  schweitserischen  Quartierplanerfahrens,  1913. 

73  See  Sitte,  Enteignungsgesetz  und  Lageplan,  Der  Stadtebau,  for  1904, 
No.  I,  p.  5-7,  in  opposition  to  replotting  in  Austria. 

74  For  references  to  and  in  many  cases  the  text  of  excess  and  zone 
condemnation  and  replotting  provisions  in  Switzerland,  Austro-Hungary, 
Germany  and  other  countries,  up  to  1897,  see  "Die  Umlegung  Stadtischef 
Grundstilcke    und    die    Zonenenteignung"    by    Baumeister,    Classen    and 
Stiibben,  Ernst  Toeche,  Berlin,  1897. 

7B  For  the  references  to  these  statutes  and  a  translation  of  the  "Lex 
Adickes,"  with  an  abstract  of  the  most  important  provisions  of  the  other 
laws  which  are  dissimilar,  see  Note  A,  No.  3,  on  p.  105  of  this  work. 

76  The  replotting  provisions  of  the  recent  Salonika  Town  Planning 
act,  drafted  by  a  Commission  of  English  and  French  experts,  are  sum- 
marized by  John  W.  Mawson,  at  that  time  Town  Planning  Adviser  to 
the  Ministry  of  Communications,  in  the  December  Number  of  the  English 
Town  Planning  Review.  In  August,  1917,  Salonika  was  totally  destroyed 
by  fire  for  the  fifth  time,  and  the  statute  was  passed  to  take  advantage 


88  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Note  A 
No.  i.    THE  ENGLISH  UNHEALTHY  AREAS  ACT 

This  act  is  one  of  the  "Cross  Acts,"  passed  in  1875.  In  1890  the 
act,  as  from  time  to  time  amended,  was  consolidated  with  a  mass  of 
other  housing  legislation,  some  of  it  dating  as  far  back  as  1851.  That 
consolidation  is  known  as  the  "Housing  of  the  Working  Classes  Act, 
1890."  The  act  of  1890  has  been  amended  from  time  to  time;  and 
all  this  legislation  is  now  known  as  the  "Housing  Acts,  1890  to  1919." 

The  unhealthy  areas  act  is  here  given  in  its  amended  form.  It 
is  an  act  for  the  condemnation  and  replanning  of  large  unhealthy 
areas.  The  Housing  of  the  Working  Classes  Acts,  1890-1909  con- 
tain provisions  also  (i)  for  the  condemnation  and  replanning  of 
small  unhealthy  areas  (2)  for  the  closing  or  demolition  of  houses 
unfit  for  habitation  (3)  for  the  demolition  of  "obstructive"  buildings 
rendering  other  buildings  insanitary  (4)  for  the  erection  of  houses 
in  certain  cases.  The  act  has  had  a  great  influence  in  other  coun- 
tries, and  statutes  modeled  on  it  have  been  passed  in  many  parts  of 
the  British  Empire." 

of  this  great  opportunity  to  replan  it.  The  first  act  of  the  government 
was  to  issue  a  Royal  decree  prohibiting  the  erection  or  repair  of  any 
building  prior  to  the  adoption  of  the  new  law.  A  survey  and  plan  of  the 
city  were  then  made.  Under  the  Greek  constitution  the  government  was 
obliged  to  pay  immediately  the  full  value  of  the  property;  for  which 
purpose  it  had  no  available  funds.  The  owners  of  property  in  the  burnt 
district  were  therefore,  by  virtue  of  the  act,  incorporated  as  a  property 
owners  association  for  the  purpose  of  executing  the  new  scheme,  and 
all  individual  rights  and  titles  extinguished;  each  property  owner  was 
made  a  shareholder  in  the  company  to  the  amount  of  the  value  of  his 
individual  holding;  and  the  management  of  the  company  was  given  to 
the  government.  A  careful  method  of  valuing  the  property  thus  forcibly 
taken  over  by  the  company  was  adopted,  the  property  owner  being  given 
a  hearing  and  right  of  appeal.  In  exchange  for  his  property  each  owner 
received  state  bonds,  which  he  was  forbidden  to  sell,  but  on  which,  as 
collateral,  the  National  Bank  of  Greece  was  authorized  to  advance  to 
him  seventy-five  per  cent  of  their  face  value.  The  city  was  then  re- 
planned  and  replotted,  and  the  sale  of  the  new  lots  arranged  for,  the 
owners  of  the  bonds  having  the  right  to  turn  them  in,  at  their  face  value, 
in  payment  for  any  lots  purchased  by  them.  Other  things  being  equal, 
the  preference  was  given,  in  purchasing,  to  the  old  property  owners. 
They  also  received  fifty  per  cent  of  any  profit  realized  by  the  company, 
the  other  fifty  per  cent  going  to  the  municipality  of  Salonika,  to  be  ex- 
pended in  the  construction  of  public  buildings. 

"New  Zealand,  Consolidated  Stats.,  Vol.  TV,  No.  124,  p.  293  (Mimic. 
Corps.);  Bengal,  Calcutta  Improvement  Act,  1911;  Code  (4th  cd.),  Vol. 
Ill,  p.  701.  See  in  this  connection  Richards;  Bombay,  Act  of  1898, 
No.  IV. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE 


89 


THE  HOUSING  OF  THE  WORKING  CLASSES  ACT,  1890 


PART  I 


SCHEME  BY  LOCAL  AUTHORITY 


4.  Where  an  official  representation  as  hereinafter  mentioned  is 
made  to  the  local  authority  that  within  a  certain  area  in  the  district 
of  such  authority  either — 

(a)  any  houses,  courts,  or  alleys  are  unfit  for  human  habitation, 
or 

(b)  the  narrowness,  closeness,  and  bad  arrangement,  or  the  bad 
condition  of  the  streets  and  houses  or  groups  of  houses  within  such 
area,  or  the  want  of  light,  air,  ventilation,  or  proper  conveniences, 
or  any  other  sanitary  defects,  or  one  or  more  of  such  causes,  are 
dangerous  or  injurious  to  the  health  of  the  inhabitants  either  of  the 
buildings  in  the  said  area  or  of  the  neighboring  buildings ; 

and  that  the  most  satisfactory  method  of  dealing  with  the  evils  con- 
nected with  such  houses,  courts  or  alleys,  and  the  sanitary  defects  in 
such  area  is  an  improvement  scheme  for  the  rearrangement  and  recon- 
struction of  the  streets  and  houses  within  such  area,  or  of  some  of 
such  streets  or  houses,  the  local  authority  shall  take  such  representa- 
tion into  their  consideration,  and  if  satisfied  of  the  truth  thereof,  and 
of  the  sufficiency  of  their  resources,  shall  pass  a  resolution  to  the 
effect  that  such  area  is  an  unhealthy  area  and  that  an  improvement 
scheme  ought  to  be  made  in  respect  of  such  area,  and  after  passing 
such  resolution  they  shall  forthwith  proceed  to  make  a  scheme  for 
the  improvement  of  such  area. 

Provided  always,  that  any  number  of  such  areas  may  be  included 
in  one  improvement  scheme. 

5.  (i)     An  official  representation  for  the  purposes  of  this  part 
of  this  Act  shall  mean  a  representation  made  to  the  local  authority 
by  the  medical  officer  of  health  of  that  authority,   and  in  London 
made  either  by  such  officer  or  by  any  medical  officer  of  health  in 
London. 

(2)  A  medical  officer  of  health  shall  make  such  representation 
whenever  he  sees  cause  to  make  the  same;  and  if  any  justice  of  the 
peace  acting  within  the  district  for  which  he  acts  as  medical  officer 
of  health,  or  six  or  more  persons  liable  to  be  rated  to  the  local  rate 
complain  to  him  of  the  unhealthiness  of  any  area  within  such  district, 
it  shall  be  the  duty  of  the  medical  officer  of  health  forthwith  to 
inspect  such  area,  and  to  make  an  official  representation  stating  the 
facts  of  the  case,  and  whether  in  his  opinion  the  said  area  or  any 
part  thereof  is  an  unhealthy  area  or  is  npt  an  unhealthy  area. 


Local  au- 
thority on 
being 
satisfied 
by  official 
representa- 
tion of  the 
unhealthi- 
ness of 
district 
to  make 
scheme 
for  its  im- 
prove- 
ment. 


Official 
representa- 
tion, by 
whom  to 
be  made. 


90  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Requisite.          6.     (i)     The  improvement  scheme  of  a  local  authority  shall  be 
mentpr°v^   accompanied  by  map,  particulars,  and  estimates  and 
scheme  (a)     may  exclude  any  part  of  the  area  in  respect  of  which  an 

aJthSritr.  official  representation  is  made,  or  include  any  neighboring  lands,  if 
the  local  authority  are  of  the  opinion  that  such  exclusion  is  expe- 
dient or  inclusion  is  necessary  for  making  their  scheme  efficient  and 
(&)  may  provide  for  widening  any  existing  approaches  to  the 
unhealthy  area  or  otherwise  for  opening  out  the  same  for  the  pur- 
poses of  ventilation  or  health;  and 

(c)  shall  provide  such  dwelling  accommodation,  if  any,  for  the 
working  classes  displaced  by  the  scheme  as  is  required  to  comply 
with  this  Act;  and 

(rf)     shall  provide  for  proper  sanitary  arrangements;  and 
(e)     may  provide  for  any  other  matter    (including  the  closing 
and  diversion  of  highways),  for  which  it  seems  expedient  to  make 
provision  with  a  view  to  the  improvement  of  an  area  or  the  general 
efficiency  of  the  scheme. 

(2)  The  scheme  shall  distinguish  the  lands  proposed  to  be  taken 
compulsorily. 

(3)  The  scheme  may  also  provide  for  the  scheme  or  any  part 
thereof  being  carried  out  and  effected  by  any  person  having  such 
interest  in  any  land  comprised  in  an  improvement  scheme  as  may  be 
sufficient  to  enable  him  to  carry  out  and  effect  the  same,  or  with  the 
concurrence  of  such  person,  under  the  superintendence  and  control 
of  the  local  authority,  and  upon  such  terms  and  conditions  to  be 
embodied  in  the  scheme  as  may  be  agreed  upon  between  the  local 
authority  and  such  person.  .  .  . 

*(The  act  goes  on  to  provide  for: — the  confirmation  of  the  scheme, 
provisionally,  by  the  Local  Government  Board  (or  in  the  County  or 
City  of  London,  by  a  Secretary  of  State)  and  finally,  by  act  of 
Parliament;  an  inquiry  by  the  confirming  authority  on  the  neglect  or 
refusal  of  the  local  authority  to  act;  and  an  order,  when  necessary  or 
proper,  by  the  confirming  authority  to  the  local  authority  to  prepare 
and  execute  a  scheme;  the  provision  on  or  near  the  same  area  for 
the  housing  of  as  many  persons  of  the  working  classes  as  were  dis- 
placed—but this  provision  may  be  wholly  or  partly  waived;  the 
execution  of  the  scheme  by  purchasers,  trustees,  lessees,  etc.,  subject 
to  proper  conditions  as  to  size  and  design  of  houses,  etc. ;  an  inquiry 
as  to  the  unhealthy  areas  on  petition  of  rate  payers,  upon  default  of 
the  medical  officer;  the  revocation  by  the  Local  Government  Board 
of  unreasonable  local  bye-laws;  etc. 

*  Summarized. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  91 

No.  z.    THE  FRENCH  EXPROPRIATION  LAW  OF  1841  ™  AS  AMENDED  BY 
THE  EXCESS  CONDEMNATION  LAW  OF  1918 

TITLE  I.    PRELIMINARY  PROVISIONS 

ART.  i.  Expropriation  for  public  use  shall  be  by  authority  of 
justice. 

[ART.  2.]  The  courts  shall  grant  expropriation  only  when  its 
utility  has  been  established  and  declared  in  the  forms  prescribed  by 
the  present  law. 

These  forms  consist, 

1st.  In  the  law  or  [royal  ordinance]  decree  authorizing  the 
[execution  of  the  work]  transaction  for  which  the  expropriation  is 
claimed; 

2nd.  In  the  act  of  the  prefect  designating  the  places  or  tracts  of 
land  where  the  [work]  transaction  shall  be  prosecuted,  when  such 
designation  does  not  result  from  the  law  or  the  [royal  ordinance] 
decree. 

3rd.  In  the  subsequent  administrative  decree  by  which  the  pre- 
fect fixes  the  limits  of  the  particular  pieces  of  land  to  which  expro- 
priation shall  apply. 

This  application  shall  not  be  made  to  any  particular  piece  of  prop- 
erty until  the  parties  interested  have  been  given  an  opportunity  to  be 
heard,  in  accordance  with  the  provisions  contained  in  title  II." 

ART.  2.  The  expropriation  not  only  of  the  area  included  within 
the  limits  of  the  proposed  public  works,  but  also  of  all  those  areas 
which  are  found  to  be  necessary  to  secure  to  these  works  their  full 
value,  present  or  future,  may  be  declared  a  public  utility. 

This  may,  more  particularly,  be  done  in  the  case  of  urban  high- 
ways, with  regard  to  the  areas  outside  the  alignment  which  are  an 
obstacle  to  the  proper  lot  subdivision  or  are  not  suitable  for  the  sites 

78  Passed  May  3,  1841 ;  to  be  found  in  the  Bulletin  des  lois  for  that 
year,  No.  9285,  p.  601.  It  is  here  given  as  amended  by  the  laws  of  April 
21,  1914  (Bull,  des  lois,  No.  2926,  p.  1103),  November  6,  1918  (Bull, 
des  lois.  No.  13222,  p.  2501,  and  July  17,  1921  (Bull,  des  lois,  No.  19639, 
P-  3°97-  The  text  is  that  of  the  law  of  1841,  with  repealed  matter  enclosed 
in  brackets  [  ] ,  and  matter  added  by  the  later  laws  in  italics.  The  amend- 
ments indicated  are  those  made  by  the  law  of  1918  unless  otherwise 
stated ;  in  the  occasional  portions  of  the  law  which  are  given  in  summary, 
however,  it  has  not  in  all  cases  been  possible  to  distinguish  between  the 
original  acts  and  amendments,  or,  when  this  is  shown,  to  state  by  what 
law  the  amendments  were  made. 

"The  only  substantial  changes  in  this  article  made  by  the  law  of 
1918  are  the  substitution  of  the  word  "transaction"  for  "work"  wherever 
it  occurs ;  the  old  word  not  being  descriptive  of  condemnation  to  obtain 
the  increase  in  value  in  the  neighborhood  of  the  work,  etc.,  which  the 
law  of  1918  introduces. 


$2  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

of  structures  which  are  in  accordance  with  the  general  plan  of  the 
works. 

Art.  2  bis.  The  expropriation  of  land  which  because  of  its  prox- 
imity to  a  proposed  public  work  will  thereby  be  raised  in  value  more 
than  /5%,  may  also  be  declared  to  be  a  public  utility. 

ART.  3.  All  great  public  works,  [royal]  national  highways,  canals, 
railways,  canalization  of  rivers,  harbors  and  docks,  the  construction 
of  which  is  undertaken  by  the  State  [departments,  communes],  or 
by  private  companies,  with  or  without  tolls,  with  or  without  subsidy 
from  the  Treasury,  with  or  without  the  alienation  of  public  domain, 
shall  be  authorized  only  by  a  law  [which  shall  be  passed  only  after 
an  administrative  inquest.** 

A  royal  ordinance  shall  suffice  as  authorization  for  the  construc- 
tion of  departmental  highways,  canals,  and  branch  railways  of  less 
than  twenty  thousand  metres  in  length,  of  bridges  and  of  all  other 
works  of  minor  importance. 

This  ordinance  shall  also  be  preceded  by  an  inquest. 

These  inquests  shall  be  in  form  as  determined  by  a  rule  of  public 
administration]. 

The  construction  of  canals  and  branch  railways  of  less  than  twenty 
thousand  metres  in  length,  of  missing  links  in  or  the  relocation  of  the 
lines  of  national  highways,  of  bridges  and  all  other  enterprises  of 
'minor  importance  may  be  authorized  by  decree  in  Council  of  State. 

The  construction  of  departmental  and  communal  works  may  be 
authorised  by  simple  decree. 

An  administrative  inquest  shall  always  be  held  before  the  pas- 
sage of  the  decree  or  law." 

Art.  3  bis.  When,  under  art.  2  or  2  bis.  there  is  occasion  to 
extend  the  expropriation  to  realty  situated  outside  the  line  of  the  pro- 
posed work,  the  authorization  can  be  given  only  by  a  law  or  a  decree 
in  Council  of  State. 

This  law  or  decree  shall  fix  the  zone  in  which  it  shall  apply,  in 
accordance  with  the  reason  for  the  extension  of  the  expropriation  /.» 
it.  The  law  or  decree  shall  also  determine  the  mode  of  utilization  of 
the  lots  not  included  in  the  public  rvork.  and,  in  due  course,  the  restric- 
tions to  which  on  resale  these  lots  shall  be  subject. 

Under  article  2  bis  an  expert  examination  shall  be  made  as  a  part 
of  the  administrative  inquest,  with  a  view  to  the  determination  of  the 
amount  of  the  increase  in  value. 

The  form  of  this  expert  examination  shall  be  governed  by  a  rule 
of  public  administration. 

**  Public  hearing. 

"The  only  change  made  in  this  article  of  the  law  of  1841  by  the  law 
of  1918  is  in  consolidating  it  with  the  senate  decree  of  December  25, 
1852,  article  44  of  the  law  of  July  27.  1870,  and  the  laws  of  August 
ii,  1871,  and  July  27,  1880.  modifying  it. 


EXCESS  CONDEMNATION   ETC.  IN   EUROPE  93 


TITLE    II.      ADMINISTRATIVE    ACTS    WITH    RELATION    TO    EXPROPRIATION 

ART.  4.  The  engineers  or  other  technicians  entrusted  with  the 
execution  of  the  work,  shall  make  a  plan  for  that  portion  of  the  work 
situated  in  each  commune,  with  lot  boundaries  of  the  lands  or  build- 
ings the  taking  of  which  appears  to  them  to  be  necessary. 

ART.  5.  The  plan  of  each  of  said  properties  showing  the  names 
of  each  proprietor  as  of  record,  shall  remain  for  eight  days  on  deposit 
at  the  office  of  the  mayor  of  the  commune  in  which  the  properties  are 
situated,  in  order  that  each  proprietor  may  have  the  opportunity  of 
acquainting  himself  with  it. 

ART.  6.  The  time  fixed  in  the  preceding  article  shall  begin  to  run 
at  the  date  of  notice,  which  shall  be  given  to  all  the  parties  interested, 
to  take  note  of  the  plan  deposited  at  the  office  of  the  mayor.81* 

This  notice  shall  be  published  in  the  commune  at  the  sound  of 
the  trumpet  or  drum  and  posted  either  at  the  principal  [doorway  of 
the  church  of  the  locality  or  at  that  of  the  communal  house]  office  of 
the  mayor  or  at  some  other  spot  conspicuous  and  much  frequented  by 
the  public,  which  shall  be  designated  by  an  administrative  decree  of 
the  municipality!* 

It  shall  also  be  inserted  in  one  of  the  papers  published  in  the 
arrondissement,  or,  if  there  is  no  such  paper,  in  one  of  the  papers  of 
the  department. 

ART.  7.  The  mayor  shall  certify  to  these  publications  and  post- 
ings of  notices;  he  shall  state,  in  an  official  report  which  he  shall 
make  for  that  purpose  and  that  the  parties  who  appear  are  required 
to  sign,  the  allegations  and  claims  which  have  been  made  to  him  ver- 
bally, and  annex  those  which  have  been  sent  to  him  in  writing. 

'ART.  8.  At  the  expiration  of  the  period  of  eight  days  prescribed 
by  article  5,  a  commission  shall  meet  at  the  principal  seat  of  the  sub- 
prefecture. 

This  commission,  presided  over  by  the  sub-prefect  of  the  arron- 
dissement, shall  be  composed  of  four  members  of  the  general  council 
of  the  department  or  of  the  council  of  the  arrondissement,  chosen  by 
the  prefect,  of  the  mayor  of  the  commune  where  the  properties  are 
situated  and  of  one  of  the  engineers  charged  with  the  execution  of 
the  work. 

No  session  of  the  commission  shall  be  held  unless  at  least  five  of 
its  members  are  present. 

When  there  are  six  members  present,  and  .a  tie  occurs,  the  vote 
of  the  presiding  officer  shall  decide. 

811  This  paragraph  was  stricken  out  by  the  law  of  1918  and  restored 
by  the  law  of  1921. 

82  Since  the  passage  of  the  law  of  April  20,  1910,  the  church  has  been 
classified  as  a  historical  monument,  upon  which  it  is  illegal  to  post  bills, 
etc. 


94  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  owners  of  the  properties  the  expropriation  of  which  is  in 
question,  are  not  eligible  for  membership  in  the  commission. 

ART.  9.  The  commission  shall  be  in  session  to  hear  the  owners 
for  eight  days. 

It  shall  call  them  before  it  whenever  it  deems  such  a  course  proper. 
It  shall  give  its  advice. 

Its  business  shall  be  completed  within  a  period  of  ten  days,  after 
which  the  report  shall  be  made  at  once  by  the  sub-prefect  to  the 
prefect. 

In  case  its  business  has  not  been  finished  within  the  above  named 
period  the  sub-prefect  shall  within  three  days  thereafter  send  to  the 
prefect  his  report  and  the  documents  received. 

ART.  10.  If  the  commission  suggests  any  change  in  the  plan  pro- 
posed by  the  engineers,  the  sub-prefect  shall,  in  the  manner  pre- 
scribed in  article  6,  give  notice  thereof  immediately  to  the  owners 
who  are  affected  by  such  changes.  During  eight  days  from  the  date 
of  such  notice,  the  official  report  and  the  papers  in  the  case  shall 
remain  deposited  at  the  sub-prefecture;  and  the  parties  interested 
shall  have  the  right,  without  removing  them,  to  inspect  them  without 
charge  and  be  heard  with  regard  to  them  in  writing. 

Within  the  following  three  days  the  sub-prefect  shall  transmit  all 
the  papers  to  the  prefect. 

ART.  ii.  On  inspection  of  the  official  report  and  the  documents 
annexed  thereto,  the  prefect  shall  by  administrative  decree,  giving 
reasons,  designate  the  properties  which  shall  be  taken,  and  shall  state 
the  time  when  it  will  be  necessary  to  take  possession  of  them. 
Whenever  in  consequence  of  the  advice  of  the  commission  there  may 
be  occasion  to  modify  the  plan  of  the  work  ordered,  the  prefect  shall 
suspend  proceedings  until  the  matter  has  been  decided  by  the  superior 
administrative  authorities. 

The  superior  administrative  authorities  shall  have  the  right, 
according  to  the  circumstances  of  the  case,  either  forthwith  to  decide 
the  question  themselves  or  to  order  that  the  procedure  laid  down  in 
the  preceding  articles  shall  in  whole  or  in  part  be  gone  through  with 
again. 

ART.  12.  The  provisions  of  articles  8,  9  and  10  shall  not  apply 
to  expropriation  demanded  by  a  commune  or  in  an  interest  entirely 
communal,  nor  to  the  work  of  opening  or  relocating  the  lines  of  local 
highways. 

In  such  cases  the  official  report  prescribed  by  article  7  shall  be 
sent,  with  the  opinion  of  the  municipal  council,  by  the  mayor  to  the 
sub-prefect,  who  shall  send  it  to  the  prefect  with  his  advice. 

The  prefect,  in  council  of  prefecture,  on  inspection  of  the  official 
report  and  without  the  approval  of  the  superior  administrative 
authorities,  shall  render  his  decision  as  provided  in  the  preceding 
article. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  95 

TITLE    III.      OF    EXPROPRIATION    AND    ITS    CONSEQUENCES    WITH    REGARD 
TO   SECURED  DEBTS,   MORTGAGES,  REAL  RIGHTS 

ART.  13.  If  the  property  of  minors,  those  deprived  of  civil  rights, 
absent  persons,  or  other  incapables,  are  included  in  the  plans  de- 
posited in  accordance  with  the  provisions  of  article  5,  or  the  modifi- 
cations of  it  allowed  by  the  superior  administrative  authorities  under 
the  provisions  of  article  1 1  of  the  present  law,  tutors,  those  who  have 
been  placed  in  temporary  possession  and  all  representatives  of  inca- 
pables, may  after  authorization  by  the  court  given  on  their  petition 
without  proof  or  other  proceedings  of  any  kind M  in  chambers  with 
the  consent  of  the  public  minister,  voluntarily  agree  to  the  alienation 
of  said  property. 

The  court  shall  make  such  stipulations  for  the  preservation  or 
reinvestment  of  the  property  as  it  deems  necessary. 

These  provisions  are  applicable  to  dotal  and  entailed  real  estate. 

Prefects  may  in  the  same  manner  alienate  the  property  of  depart- 
ments, when  authorized  so  to  do  by  resolution  of  the  council  general ; 
mayors  or  administrators  may  alienate  the  property  of  communes  or 
public  institutions,  when  authorized  so  to  do  by  resolution  of  the 
municipal  council  or  administrative  council,  ratified  by  the  prefect  in 
council  of  prefecture. 

The  minister  of  finance  may  consent  to  the  alienation  of  the 
property  of  the  State,  or  of  those  interested  in  an  endowment  of  the 
Crown,  on  the  advice  of  the  commissioner  of  the  civil  list. 

In  default  of  agreement  either  with  the  owners  of  the  lands  or 
buildings  the  cession  of  which  is  considered  necessary,  or  with  those 
who  represent  them,  the  prefect  shall  transmit  to  the  King's  attorney 
in  the  jurisdiction  in  which  the  property  is  situated,  the  law  or  ordi- 
nance which  authorizes  the  execution  of  the  work,  and  the  adminis- 
trative decree  mentioned  in  article  n. 

ART.  14.  Within  three  days  and  upon  the  production  of  the  docu- 
ments showing  that  the  formalities  prescribed  by  article  ist  of  title 
ist  and  by  title  II  of  the  present  law  have  been  fulfilled,  the  attorney 
for  the  [King]  republic  shall  demand  and  the  court  shall  pronounce 
the  expropriation  for  public  use  of  the  lands  or  buildings  indicated  in 
the  administrative  decree  of  the  prefect. 

In  all  cases,  in  so  far  as  the  realty  of  which  the  expropriation  is 
authorized  by  virtue  of  article  2  bis  is  concerned,  the  same  shall  be 
adjudged  only  conditionally  and  only  in  cases  where  at  the  expiration 
of  the  period  of  eight  days  fixed  by  article  39,  the  option  offered  shall 
not  have  been  exercised  in  favor  of  the  indemnity  of  excess  value. 

If  within  a  year  from  and  after  the  administrative  decree  of  the 
prefect,  the  authorities  have  not  proceeded  with  the  expropriation, 

83  Simple  requete. 


96  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  owner  of  each  of  the  pieces  of  realty  included  in  said  decree  may 
present  his  petition  to  the  court.  The  attorney  for  the  [King]  repub- 
lic shall  notify  the  prefect  of  the  filing  of  the  petition;  the  prefect 
shall  as  speedily  as  possible  send  the  papers  and  the  court  shall  render 
its  decision  within  three  days. 

*  Paragraphs  4  and  5:  procedural  provisions. 

In  case  the  owners  of  the  land  to  be  expropriated  consent  to  its 
cession,  but  there  is  no  agreement  on  the  price,  the  court  shall  order 
the  execution  of  an  instrument  of  cession  and  shall  designate  the 
magistrate  director  of  the  jury;  in  which  case  it  shall  not  be  neces- 
sary to  render  judgment  of  expropriation  or  to  make  sure  that  the 
formalities  prescribed  by  title  II  have  been  fulfilled. 

ART.  15.  The  judgment  shall  be  published  and  an  abstract  of  it 
posted  in  the  commune  in  which  the  property  is  situated,  in  the  man- 
ner indicated  in  article  6.  It  shall  also  appear  in  a  paper  published 
in  the  arrondissement,  or  if  there  is  none  such,  in  a  paper  published 
in  the  department. 

This  abstract,  containing  the  names  of  the  owners,  the  reasons  for 
and  the  dispositions  of  the  judgment,  shall  be  served  on  such  owners 
at  the  residences  that  they  have  chosen  in  the  arrondissement  in 
which  the  properties  are  situated,  by  a  statement  made  at  the  office 
of  the  mayor  of  the  commune  in  which  the  property  is  situated,  and 
in  case  an  election  of  domicile  has  not  taken  place,  the  notice  con- 
taining the  summary  shall  be  given  in  duplicate  to  the  mayor  and  to 
the  farmer,  tenant,  care  taker,  or  steward  of  the  property. 

A  third  copy  shall  also  be  sent  by  registered  letter,  with  return 
receipt  required  for  delivery,  to  the  person  to  be  expropriated,  if  his 
residence  appears  on  the  land  survey  register. 

All  other  notices  prescribed  by  the  present  law  shall  be  given  in 
the  manner  above  provided. 

ART.  16.  The  judgment,  immediately  after  compliance  with  the 
formalities  prescribed  by  article  15  of  the  present  law,  shall  be  re- 
corded at  the  bureau  for  the  conservation  of  mortgages  of  the  arron- 
dissement in  conformity  with  article  2181  of  the  civil  code. 

ART.  17.  Within  two  weeks  of  such  record,  secured  debts,  and 
mortgages  by  agreement,  by  court  decree  or  by  force  of  law,  shall 
be  registered. 

In  default  of  registration  within  this  period  the  realty  expro- 
priated shall  be  free  of  all  liens  and  mortgages  of  all  sorts,  without 
prejudice  to  the  rights  of  women,  minors  or  those  deprived  of  civil 
rights  against  the  amount  of  compensation,  in  so  far  as  it  has  not 
been  paid  or  the  order  in  which  creditors  shall  be  paid  has  not  been 
finally  determined. 

The  creditors  registered  shall  not  in  any  case  be  entitled  to  tender 

•  Summarized. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  97 

the  amount  for  which  the  realty  was  sold  and  have  it  sold  again;84 
but  they  may  demand  that  the  compensation  shall  be  fixed  in  accord- 
ance with  title  IV. 

ART.  1 8.  No  action  of  annulment  or  recovery  of  the  property  or 
any  other  real  action  shall  suspend  the  expropriation  proceedings  or 
prevent  expropriation  from  going  into  effect.  The  rights  of  claimants 
shall  be  transferred  to  the  money  payment  and  the  realty  shall  be 
free  of  their  claims. 

ART.  19.  The  rules  laid  down  in  the  first  paragraph  of  article  15, 
and  in  articles  16,  17  and  18,  are  applicable  to  voluntary  agreements 
made  between  the  authorities  and  the  owners. 

Nevertheless,  the  authorities  may,  without  prejudice  to  the  rights 
of  third  parties,  and  without  complying  with  the  formalities  pre- 
scribed above,  pay  for  property  acquired  the  value  of  which  does  not 
exceed  [500]  1500  Ma  francs. 

The  failure  to  comply  with  the  formalities  for  freeing  the  prop- 
erty from  mortgage  claims  shall  not  delay  the  expropriation;  which 
shall  not  prejudice  the  rights  of  interested  parties  in  the  enforcement 
of  their  claims,  subsequently,  in  the  manner  prescribed  in  title  IV  of 
the  present  law. 

ART.  20.  The  judgment  can  be  attacked  only  by  recourse  to  pro- 
ceedings for  its  annulment ;  and  this  can  be  claimed  only  for  excess 
of  authority  or  defects  in  the  form  of  judgment. 

Proceedings  for  this  purpose  may  be  begun  not  later  than  within 
three  days  from  the  date  of  the  notice  of  the  judgment,  by  statement 
to  that  effect  filed  with  the  clerk  of  the  court.  Notice  thereof  shall 
be  given  within  a  week,  either  to  the  party  at  the  domicile  indicated 
in  article  15  or  to  the  prefect  and  to  the  mayor,  as  the  case  and  the 
nature  of  the  work  may  be,  all  on  pain  of  forfeiture  of  the  right  to 
proceed. 

Within  two  weeks  of  the  notice  of  appeal  the  papers  in  the  case 
shall  be  sent  to  the  civil  division  of  the  court  of  cassation,  which  shall 
render  its  decision  before  the  expiration  of  the  following  month. 

The  judgment,  if  it  is  rendered  by  default,  at  the  expiration  of 
the  prescribed  period,  shall  be  final. 

TITLE    IV.      WITH    REGARD    TO    THE    FIXING    OF    COMPENSATION 

Chapter  I.    Preliminary  Proceedings 

ART.  21.  Within  the  week  following  the  notice  provided  for  in 
article  15,  the  owner  shall  summon  and  give  the  authorities  the  names 
of  the  farmers,  tenants,  those  entitled  to  usufruct,  habitation  or  use, 
as  provided  by  the  civil  code,  and  those  who  are  entitled  to  servitudes 

84  Surencherir. 

841  Amendment  made  by  law  of  1921. 


98  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

under  title  derived  from  the  owner  or  by  other  acts  to  which  he  has 
been  a  party;  and  on  his  failure  so  to  do,  he  shall  remain  alone 
charged,  as  regards  them,  with  the  compensation  to  which  they  have 
claim. 

Others  interested  must  enforce  their  rights  by  the  notice  provided 
for  in  article  6  and  acquaint  the  authorities  with  their  claims  within 
the  same  period  of  one  week;  in  default  of  which  they  shall  forfeit 
all  rights  to  compensation. 

ART.  22.  The  provisions  of  the  present  law  relative  to  owners 
and  their  creditors  are  applicable  to  the  usufructuary  and  his 
creditors. 

ART.  23.  The  authorities  shall  notify  the  owners  and  all  others 
interested  who  have  been  made  parties  or  who  have  intervened  within 
the  time  fixed  by  article  21  of  the  sums  which  the  authorities  offer 
as  compensation  [.]  for  eviction,  and,  later,  those  which  they 
demand  as  compensation  for  increase  in  value  in  excess  of  15%. 

These  offers  and  denwnds  shall  also  be  posted  and  published  in 
conformity  with  the  provisions  of  article  6  of  the  present  law. 

ART.  24.  Within  the  next  two  weeks  the  owners  and  others  in- 
terested shall  declare  their  acceptance  or,  if  they  do  not  accept  the 
offers  made  them,  shall  state  the  amount  of  their  claims. 

ART.  25.  Married  women  under  the  dotal  regime  in  the  presence 
of  their  husbands,  tutors,  those  who  have  been  put  into  temporary 
possession  of  the  property  of  absent  persons,  and  other  persons  who 
represent  incompetents,  may  give  binding  assent  to  the  offers  men- 
tioned in  article  23,  when  authorized  thereto  in  form  as  prescribed  in 
article  13. 

ART.  26.  Ministers  of  finance,  prefects,  mayors  or  administrators 
may  accept  offers  of  compensation  for  the  expropriation  of  property 
belonging  to  the  State,  to  the  Crown,  to  departments,  communes,  or 
public  institutions,  under  the  forms  and  with  the  authorizations  pre- 
scribed in  article  13. 

ART.  27.  The  period  of  two  weeks,  fixed  by  article  24,  shall  be 
one  month  in  the  cases  provided  for  in  articles  25  and  26. 

ART.  28.  If  the  offers  of  the  authorities  are  not  accepted  within 
the  periods  named  in  articles  24  and  27,  the  authorities  shall  call 
before  the  jury,  which  shall  be  convoked  for  the  purpose,  the  owners 
and  all  others  interested  who  have  been  summoned  or  who  have  inter- 
vened, in  order  that  the  compensation  may  be  fixed  in  the  manner 
indicated  in  the  following  chapter.  The  citation  shall  contain  a 
statement  of  the  offers  which  have  been  refused. 


ZONE  CONDEMNATION  AND  REPLOTTING  IN  EUROPE     99 

Chapter  II.     With  regard  to  the  Special  Jury  to  Fix  the 
Compensation 

*Arts.  29-38.     Method  of  choosing  the  jury  of  six.* 

ART.  39.  The  jury  shall  award  separate  damages  in  favor  of  each 
of  the  parties  claiming  compensation  by  different  titles,  such  as 
owners,  farmers,  tenants,  those  having  the  right  of  use,  and  others 
interested,  mentioned  in  article  21. 

With  regard  to  realty  the  expropriation  of  which  is  claimed  by 
reason  of  increase  in  value,  the  jury  shall  make  awards  first  of  the 
compensation  due  for  increase  in  value  of  the  realty  in  excess  of  15%, 
and  then  of  the  compensation  due  in  the  event  of  the  expropriation 
of  the  realty. 

In  the  case  of  a  usufruct,  a  single  compensation  shall  be  fixed  by 
the  jury  for  the  value  of  the  realty  as  a  whole;  the  claim  of  the 
owner  of  the  reversion  and  the  usufructuary  shall  be  against  the 
total  amount  of  the  compensation  instead  of  against  the  property. 

The  usufructuary  shall  be  required  to  give  bond;  the  father  and 
mother  having  the  legal  usufruct  shall  alone  be  relieved  of  this 
requirement. 

Whenever  there  is  litigation  with  regard  to  the  legal  basis  of  a 
claim  or  the  title  of  claimants,  and  in  all  cases  in  which  objections 
are  raised  foreign  to  the  fixing  of  the  amount  of  the  compensation, 
the  jury  shall  fix  the  compensation  without  regard  to  these  contests 
and  objections;  as  to  which  the  parties  shall  have  recourse  to  suit  to 
establish  their  rights. 

The  compensation  awarded  by  the  jury  shall  not,  in  any  case,  be 
less  than  the  offers  of  the  authorities  nor  more  either  than  the  claim 
of  the  party  interested  [.]  or  the  claim  for  increase  in  value.*** 

ART.  40.  If  the  compensation  fixed  by  the  jury  does  not  exceed 
the  offer  of  the  authorities,  the  parties  who  have  refused  the  offer 
shall  be  taxed  with  the  costs. 

If  the  compensation  is  equal  in  amount  to  the  claims  of  the  par- 
ties, the  authorities  shall  be  taxed  with  the  costs. 

If  the  compensation  is  both  larger  than  the  offer  of  the  authorities 
and  smaller  than  the  claim  of  the  parties,  the  costs  shall  be  taxed 

*  Summarized. 

"Articles  29,  30,  31,  33,  34  and  35  were  amended  by  the  law  of  No- 
vember 6,  1918;  and  article  38,  by  the  law  of  April  21,  1914. 

i5a  See  in  this  connection  the  law  of  May  27,  1918,  which  provides 
(sec.  6)  that  in  expropriation  "the  jury  shall  take  as  the  basis  of  their 
valuation  .  .  .  the  value  derived  from  the  returns  made  by  those  liable  for 
taxation,  or  administrative  yaluations  not  contested  or  become  final  by 
virtue  of  fiscal  laws."  The  jury  can  vary  this  valuation  only  on  account 
of  changed  circumstances  necessitating  it.  See  Berthelemy,  Droit  Ad- 
ministratif ,  9th  ed.,  1920,  p.  640. 


ioo  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

against  the  authorities  and  the  parties  in  the  ratio  of  the  offer  or 
claim   [with]   before  the  verdict  of  the  jury. 

When  the  expropriation  has  been  prosecuted  by  reason  of  the 
increase  in  value,  the  costs  shall  be  taxed  in  accordance  with  the  same 
rules,  taking  into  consideration  in  ihat  case,  the  claim  for  compensa- 
tion for  increase  in  value  made  by  the  authorities  and  the  offer  of  the 
parties. 

Every  person  claiming  compensation  who  does  not  come  within 
the  provisions  of  articles  24  and  25,  shall  be  taxed  with  costs  irre- 
spective of  the  ultimate  verdict  of  the  jury  if  he  has  failed  to  con- 
form to  the  provisions  of  article  24. 

In  no  case  shall  the  share  of  the  costs  taxed  against  a  party  expro- 
priated exceed  the  amount  of  compensation  awarded  him;  the  excess 
shall  remain  a  charge  against  the  authorities  expropriating. 

ART.  41.  The  verdict  of  the  jury,  signed  by  the  members  who 
have  concurred  in  it,  shall  be  [sent  by  the  president  to]  read  by  the 
magistrate  director  who  shall  declare  it  to  be  a  true  verdict,  pass  on 
the  costs  and,  subject  to  the  provisions  of  article  14,  paragraph  2 
[and  j]*b,  shall  put  the  authorities  into  possession  of  the  property, 
subject  to  the  obligation  to  conform  to  the  dispositions  of  articles 
S3.  54.  and  following  articles. 

Every  juror  ivho  without  good  reason  shall  refuse  to  sign  a  ver- 
dict in  which  he  has  concurred  shall  be  subject  to  the  fine  provided 
for  in  article  32. 

Every  verdict  signed  by  the  magistrate  director  and  at  least  four 
jurors  shall  be  valid. 

The  magistrate  director  shall  tax  [the]  all  costs  [and  the  tariff  of 
the  same  shall  be  fixed  by  a  rule  of  public  administration]  and 
expenses  which  ought  to  be  paid  by  the  authorities  and  by  the  parties 
expropriated  as  provided  in  article  40. 

The  costs  so  taxed  shall  not  include  [only  expenses  for  things 
done  subsequent  to  the  offer  of  the  authorities :  those  for  things  done 
prior  thereto]  the  expenses  of  contracts  or  other  proceedings  rendered 
necessary  by  the  offer  made  in  carrying  out  the  provisions  of  article 
23  nor  those  incurred  prior  to  such  offer;  these  expenses  shall  remain 
in  every  case  a  charge  against  the  authorities. 

Jurors  shall  receive  on  demand  mileage  and  reimbursement  for 
living  expenses  while  detained  on  duty,  the  amount  of  which  shall  be 
fixed  by  a  rule  of  public  administration.  These  expenditures  shall 
be  taxed  by  the  magistrate  director  and  paid  as  urgent  expenses. 

ART.  42.  The  verdict  of  the  jury  and  the  order  of  the  magistrate 
director  can  be  attacked  only  by  recourse  to  proceedings  to  set  it 
aside  for  errors  of  law,  for  violation  of  the  provisions  of  the  first 
paragraph  of  article  30.  of  article  31,  of  the  second  and  fourth  para- 
graphs of  article  34,  [and]  of  articles  35.  36,  37>  38.  39.  4<>  [•].  the 

•""Stricken  out  by  law  of  1021. 


EXCESS  CONDEMNATION   ETC.  IN  EUROPE  roi 

fourth  paragraph  of  article  48,  and  articles  78,  79  and  80.    Such  pro- 
ceedings must  be  begun  within  a  period  of  fifteen  days,  and  shall  be 
brought,  notice  given  and  decided  as  provided  in  article  20 ;  this  period 
shall  begin  on  the  day  on  which  the  verdict  is  rendered.88 
*Arts.  43-47.    Procedural  provisions. 

Chapter  III.    Rules  to  Be  Followed  in  Fixing  Compensation 

ART.  48.  The  jury  is  the  judge  of  the  genuineness  of  title  deeds 
and  of  the  effect  of  contracts  which  may  vary  the  estimate  of  the 
amount  of  the  compensation. 

^Paragraphs  2  and  j.  Criminal  procedure  in  cases  where  any 
document  produced  is  thought  to  be  fraudulent  or  forged. 

Damages  for  expropriation  shall  include  only  actual  and  certain 
damage  caused  by  the  eviction  itself;  it  shall  not  include  injury  which 
is  uncertain  or  contingent  and  not  the  direct  consequence  of  the  expro- 
priation. If  in  the  progress  of  the  trial  any  act  of  the  expropriant  is 
shown  which  he  considers  as  the  basis  of  a  claim  of  this  nature,  the 
jury  shall  pass  on  this  claim  by  a  separate  finding." 

ART.  49.  In  case  the  authorities  contest  the  right  to  compensation 
of  a  party  in  possession  expropriated,  the  jury,  without  suspending 
proceedings  on  account  of  the  contest,  which  it  shall  leave  to  be  deter- 
mined in  another  proceeding,  shall  fix  the  compensation  as  if  due, 
and  the  magistrate  director  of  the  jury  shall  order  the  deposit  of 
such  compensation  until  the  parties  have  come  to  an  agreement  or 
the  litigation  is  terminated. 

ART.  50.  Buildings  a  part  of  which  it  is  necessary  to  acquire  for 
public  use  shall  be  bought  entire,  if  the  owners  so  require  by  formal 
demand  addressed  to  the  magistrate  director  of  the  jury,  within  the 
periods  named  in  articles  24  and  27. 

This  shall  also  be  done  in  the  case  of  every  tract  of  land  which 
by  reason  of  the  taking,  is  reduced  to  a  quarter  of  its  former  total 
area,  provided  the  owner  does  not  possess  any  land  immediately  con- 
tiguous and  the  tract  thus  reduced  in  size  is  less  than  ten  ares.88 

ART.  51.  If  the  execution  of  the  work  will  produce  an  immediate 
and  special  increase  in  value  to  the  remainder  of  the  property,  this 
increase  shall  be  taken  into  consideration  in  fixing  the  amount  of 
compensation. 

ART.  52.  Structures,  cultural  additions,  and  improvements  shall 
not  give  rise  to  any  right  to  compensation  when  by  reason  of  the 

*  Summarized;  see  laws  of  1918  and  1921. 

t  Summarized. 

88  The  amendments  were  made  by  the  laws  of  April  21,  1914,  and 
July  21,  1921. 

"Paragraphs  2  and  3  were  added  by  the  law  of  November  6,  1918; 
paragraph  4  by  the  law  of  April  21,  1914. 

"An  are  is  equal  to  100  square  metres. 


102  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

time  when  they  were  made,  or  any  other  circumstance  coming  to  the 
knowledge  of  the  jury  it  believes  that  they  were  made  with  a  view  to 
obtaining  an  increased  compensation. 

TITLE   V.      OF   THE    PAYMENT   OF   COMPENSATION 

ART.  53.  The  damages  awarded  by  the  jury  shall  be  paid  into  the 
hands  of  those  entitled  to  receive  them  before  possession  is  taken. 

If  any  person  refuses  to  accept  the  amount  awarded  him,  pos- 
session shall  be  taken  after  tender  and  deposit. 

*Paragraphs  3-5,  method  of  payment. 

The  person  expropriated,  designated  in  the  verdict  of  the  jury  as 
owner  and  not  inscribed  in  the  communal  roles,  must,  in  order  to 
obtain  payment  of  the  compensation  awarded  to  hint,  prove  his  title 
to  the  property. 

Every  farmer,  tenant  usufructuary  or  other  person  having  a  claim 
against  the  expropriating  authorities,  or  intervening  under  the  con- 
ditions laid  down  in  article  21,  in  order  to  obtain  payment  of  the  com- 
pensation awarded  to  him,  is  equally  under  the  obligation  to  prove 
his  right  to  it. 

The  sums  awarded  as  compensation  for  which  no  sufficient  title,  is 
established,  shall  be  deposited  by  the  authorities  expropriating  at  the 
deposit  and  consignment  office  and  remain  there  on  deposit  as  pro- 
vided in  article  49. 

f  ART.  54.     Method  of  paying  incumbrancers. 

ART.  55.  If  within  six  months  from  and  after  the  rendering  of 
the  judgment  of  expropriation  the  expropriating  authorities  do  not 
proceed  to  the  fixing  of  compensation  the  parties  may  demand  that 
these  authorities  proceed  to  such  fixation. 

When  the  compensation  is  fixed,  if  it  is  neither  paid  nor  deposited 
within  six  months  from  and  after  the  rendition  of  the  verdict  of  the 
jury,  those  interested  shall,  after  the  expiration  of  that  period,  be 
vested  with  the  full  right  to  the  same. 

TITLE    VI.      VARIOUS    PROVISIONS 

fARTS.  56-59.     Procedural  provisions. 

ART.  60.  If  the  lands  acquired  for  works  of  public  utility  are  not 
so  employed  or  if  realty  acquired  by  virtue  of  articles  2  and  2  bis  is 
not  used  in  conformity  to  the  law  or  decree  declaring  it  of  public 
utility,  the  former  proprietors  or  their  assigns  shall  be  entitled  to 
demand  its  retrocession. 

The  price  of  land  retroceded  shall  be  fixed  by  agreement,  or,  in 
lack  of  agreement,  by  a  jury  in  the  manner  above  prescribed.  The 

*  Summarized ;  see  laws  of  1918  and  1921. 
t  Summarized. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  103 

amount  fixed  by  the  jury  shall  not  in  any  case  exceed  the  sum  for 
which  the  lands  were  acquired. 

ART.  61.  A  notice,  published  in  the  manner  provided  in  articles 
6,  shall  make  known  the  lands  which  the  authorities  are  about  to 
resell.  Within  three  months  of  such  publication  the  former  owners 
who  wish  to  reacquire  the  ownership  of  such  lands  shall  give  notice 
to  that  effect ;  and  within  one  month  of  the  fixing  of  the  price,  by 
agreement  or  by  the  court,  they  shall  execute  the  contract  of  repur- 
chase and  pay  the  price;  all  on  pain  of  forfeiture  of  the  privilege 
accorded  to  them  by  the  preceding  article. 

ART.  62.  The  provisions  of  articles  60  and  61  are  not  applicable 
to  lands  acquired  on  the  demand  of  the  owner  by  virtue  of  article  50 
and  which  remain  undisposed  of  after  the  execution  of  the  work. 

ART.  63.  Concessionaires  of  public  works  shall  exercise  all  the 
rights  conferred  upon  the  authorities  and  shall  be  subject  to  all  the 
obligations  imposed  upon  these  authorities  by  the  present  law. 

ART.  64.  Owners  of  tracts  or  parts  of  tracts  of  land  surrendered 
or  expropriated  for  public  use  shall  continue  to  be  considered  such 
[for  electoral  purposes  for  one  year  from  the  time  of  parting  with 
the  property]  for  the  purposes  of  taxation  and  similar  purposes  until 
the  first  day  of  January  following  the  cession  or  judgment  pronounc- 
ing expropriation?* 

TITLE  VII.      PROVISIONS  FOR  SPECIAL  CASES 

Chapter  I 
*ARTS.  65-74.    Summary  procedure  in  cases  -of  urgency. 

Chapter  II 

fARTS.  75-76.  Expropriation  for  military,  temporary,  etc.,  pur- 
poses. 


ART.  77.  The  administrative  decree  giving  the  right  to  take  the 
properties  in  question,  provided  for  in  article  n,  may  be  preceded 
by  a  decree  for  the  calling  of  the  jury  of  expropriation,  made  by  the 
prefect  on  motion  of  the  authority  expropriating,  based  upon  the 
statement  of  such  authority  that  it  will  not  proceed  with  the  expro- 

*  Summarized. 

t  Summarized ;  see  laws  of  1918  and  1921. 

w  The  amendment  is  due  to  the  fact  that  there  is  no  longer  a  property 
qualification  for  voting  in  France ;  and  the  desire  to  have  a  convenient 
rule  on  the  subject. 

894  This  title  is  added  by  the  law  of  1921,  title  VIII,  art.  77  of  the  old 
law  becoming  title  IX,  art.  84. 


104  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

priation  until  the  total  amount  of  the  damages  therefor  has  first  been 
fixed. 

ART.  78.  The  decree  for  the  calling  of  the  jury  shall  be  trans- 
mitted by  the  prefect  to  the  president  of  the  court  which  win  hear 
the  case.  He  shall  move  for  the  appointment  by  the  court  in  cham- 
bers of  the  nuigistrate  director  of  the  jury.  The  jury  shall  be  con- 
stituted and  convoked  in  the  manner  provided  in  articles  29,  jo  and  j/. 
//  shall  fix  the  damages  to  which  the  parties  shall  be  entitled  on  final 
expropriation,  as  provided  in  articles  $2  to  40,  inclusive,  in  accord- 
ance with  the  provisions  of  title  IV ,  chapter  III,  and  shall  render  a 
verdict  fixing,  with  regard  to  each  of  the  parties  to  the  proceeding, 
the  damages  which  will  be  due  him  if  the  authority  expropriating 
discontinues  the  expropriation  proceeding;  in  which  event  damages 
shall  not,  with  respect  to  any  party,  exceed  one  per  centum  (/%) 
of  the  full  amount  of  the  damages  fixed  in  his  case,  nor  more  than 
five  hundred  francs  (f  7500). **b 

ART.  79.  The  decree  for  the  calling  of  the  jury  shall  be  published, 
posted  and  served  as  prescribed  in  article  15  for  a  judgment  of 
expropriation.  Notice  imposes  upon  each  owner  notified  and  upon 
the  expropriating  authority,  the  obligations  provided  for  in  articles 
21  to  28,  inclusive. 

ART.  80.  The  verdict  of  the  jury  shall  be  signed  by  the  members 
of  the  jury  who  concur  in  it.  The  magistrate  director  shall  tax  the 
costs  as  provided  in  article  41. 

ART.  81.  Within  the  month  following  the  verdict  of  the  jury, 
the  prefect  shall  give  the  expropriating  authority  notice  of  the  same, 
and  notice  that  it  is  required  to  state  within  the  time  fixed  whether 
it  will  continue  the  proceeding.  If  the  said  authority  does  not  give 
its  decision  within  three  months  from  and  after  the  date  of  the 
verdict  of  the  jury,  it  shall  be  deemed  to  have  discontinued  the  pro- 
ceeding. 

ART.  82.  //  the  expropriating  authority  declares  that  it  will  pursue 
the  expropriation,  the  prefect,  by  a  decree  giving  his  reasons,  shall 
designate  the  properties  which  shall  be  taken,  as  provided  in  article 
II,  and  thereafter  the  expropriation  shall  proceed  as  provided  in 
articles  13  to  20,  inclusive,  the  president  of  the  jury  shall  declare 
the  verdict  of  the  jury  to  be  a  true  verdict,  and  put  the  expropriating 
authority  in  possession  of  the  properties,  subject  to  the  obligation  to 
comply  with  the  provisions  of  articles  53  and  54. 

ART.  83.  The  above  provisions  shall  apply,  with  the  modifications 
hereinbelow  stated,  in  all  cases  of  expropriation  by  reason  of  increase 
in  value.  Within  eight  days  from  the  date  of  the  verdict  of  the  jury, 
the  owner  shall  elect  between  the  indemnity  for  the  increase  in  value 
and  the  damages  for  expropriation;  in  default  of  which  election  the 

**  So  in  original. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  105 

indemnity  for  the  increase  in  value  shall  be  deemed  to  have  been 
chosen.  If  the  owner  elects  to  accept  the  damages  for  the  expro- 
priation, the  authority  may,  within  eight  days  from  and  after  the 
date  of  the  notice  of  such  election,  give  notice  that  it  discontinues 
the  expropriation,  and  such  discontinuance  shall  not  give  the  right 
to  special  damages  provided  for  by  article  78.  In  default  of  such 
discontinuance  within  the  time  fixed  the  prefect  shall  pass  the  decree 
giving  the  right  to  take  the  properties  in  question,  and  the  proceeding 
shall  continue  as  provided  in  article  82. 

TITLE   IX.      FINAL  PROVISIONS 

ART.  84.  The  laws  of  March  8,  1810,  and  July  7,  1833,  are 
repealed. 

NO.  3.     GERMAN  REPLOTTING  LAWS 

The  most  widely  known  of  the  German  replotting  laws  are  those 
of  Hamburg,  Saxony,  Baden,  and  especially  Prussia.90  The  Prussian 
law  is  the  most  complete.  It  is  called  the  "Lex  Adickes,"  after  its 
author,  the  famous  chief  Burgermeister  or  mayor  of  Frankfort-on- 
the-Main.  It  applied  at  first  only  to  Frankfort;  but  was  from  time 
to  time  extended  to  other  cities  in  Prussia  and  was  finally  in  the 
Housing  Law  of  1918  (see  p.  466)  made  applicable  to  any  com- 
mune adopting  it.  It  was  originally  passed  in  1902;  but  section  13 
of  the  law  as  it  then  read  compelled  the  city  to  pay  for  a 
larger  percentage  of  land  taken  for  public  use  than  the  city  con- 
sidered just,  and  the  city,  by  refusing  its  cooperation,  succeeded  in 
preventing  a  resort  to  the  statute  to  any  considerable  extent.  In 
1907,  therefore,  this  section  was  amended  in  this  respect,  and  the 
period  of  usefulness  of  the  statute  began.  A  translation  of  the  "Lex 
Adickes,"  with  references  to  the  principal  provisions  in  the  other 

80  The  full  references  to  these  statutes  are  as  follows :  HAMBURG, 
sec.  9  of  the  Law  of  December  30,  1892,  with  regard  to  the  Building 
Plan  for  the  Suburbs  on  the  Right  Bank  of  the  Elbe,  as  amended  from 
time  to  time  thereafter.  BADEN,  Street  Statute  of  October  15,  1908  (G.  u. 
V.  O.  Bl.,  p.  605,  ff.)  with  relation  to  which  see  Fladt,  Das  badische 
Ortsstrassengesetz,  1909;  SAXONY,  General  Building  Law  of  July  i,  1900 
(G.  V.  Bl.,  p.  381),  as  amended  May  20,  1004  (ib.,  p.  163,  sec.  54  ff.,  a 
translation  of  which  will  be  found  on  p.  474  of  this  work;  and  PRUSSIA, 
"Lex  Adickes"  (Law  with  regard  to  the  Replotting  of  Building  Land  in 
Frankfort-on-the-Main)  of  July  28,  1002  (G.  S.,  p.  273),  amended  July  8, 
1907  (G.  S.,  p.  259)  ;  extended  first  to  a  number  of  Prussian  cities 
specifically,  and  later,  by  the  Prussian  Housing  Law  of  1918  (see  p.  466), 
to  all  Prussian  cities  deciding  to  adopt  it.  The  statute  as  extended  to 
Cologne,  July  28,  1911,  was  amended,  in  so  far  as  that  city  was  concerned, 
by  the  (Prussian  State)  law  of  March  28,  1919.  See  in  this  connection 
Emil  Klar,  Die  erste  Bauerschliessung  na-ch  dem  Frankfurter  Umlegungs- 
gesets,  1911.  Im  Selbstverlage ;  12  p. 


io6  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

statutes   referred   to  above,   in   which   they   differ   from  the   "Lex 
Adickes,"  follows: 

THE  "LEX  ADICKES" 

Law  with  regard  to  the  Replotting  of  Building  Land  in  Frank  fort- 

on-the-Main 


FIRST  PART 
PREREQUISITES  TO   REPLOTTING;    PRELIMINARY   PROCEEDING 

SEC.  I.  In  Frank fort-on-the-Main  lots  of  land  belonging  to  vari- 
ous owners  in  parts  of  the  city  that  are  for  the  most  part  not  built 
up,  for  which  the  building  plan  is  finally  established,  may,  in  the  pub- 
lic interest,  be  replotted,  for  the  purpose  of  obtaining  building  land 
and  securing  a  suitable  subdivision  of  building  lots,*1  in  accordance 
with  the  following  provisions. 

SEC.  2.  The  replotting  shall  include  only  a  single  part  of  the  ter- 
ritory within  the  city  limits"  (replotting  district).  The  limits  of  the 
replotting  district  shall  be  so  fixed  that  the  replotting  can  be  suitably 
carried  out,  and  shall  not  be  greater  than  the  purposes  of  the  replot- 
ting require;  in  which  connection  especial  attention  shall  be  given  to 
the  topography  and  the  streets  in  existence  or  established  by  the 
building  plan  (sec.  i).  Particular  lots  in  the  replotting  district  built 
up  or  used  in  special  ways  (such  as  market  gardens,  nursery  gardens, 
park  land  and  the  like)  may  be  wholly  or  partly  excluded  from  the 
replotting.*1  Lots  which  are  designated  for  the  permanent  exercise 
of  sovereign  rights  shall  on  the  demand  of  the  competent  authority 
be  excluded  from  the  replotting. 

SEC.  3.     The  replotting  may  be  authorized : 

*  The  other  laws  do  not  expressly  limit  the  replotting  to  parts  of  the 
city  "for  the  most  part  not  built  up" ;  but  they  each  declare  their  pur- 
pose to  be  the  obtaining  of  building  land;  and  all  but  the  Hamburg  law 
provide  that  wherever  possible  an  improved  building  lot,  if  not  excluded 
from   the   replotting,   shall   be   reassigned   to   the   original   owner.     It   is 
evident,  therefore,  that  the.  statutes  wefe  intended  for  application  to  the 
parts  of  the  city  not  built  up. 

The  Saxon  law  (sec.  55)  expressly  applies  to  "lots  of  land  whose 
buildings  by  fire,  water,  or  other  elemental  disaster,  have  been  de- 
stroyed," but  it  is  clear  that  such  land  has  become  "for  the  most  part 
not  built  up." 

*  The  other  laws  do  not  limit  replotting  to  "a  single  part"  of  the  citv. 
"The  Hamburg  law,  which  is  by  far  the  shortest,  does  not  expressly 

provide  for  the  exclusion  of  lots  devoted  to  special  uses,  etc. 

Under  the  Saxon  law  (sec.  56),  "special  lots  of  land  may  be  ex- 
cluded from  the  replotting  on  the  petition  citlur  of  the  owners  of  such 
lots  or  of  the  other  land  owners"  in  order  to  avoid  expense.  See  Rum- 
pelt's  edition  of  the  law,  Leipzig,  1911, -p.  181,  note,  citing  an  authority. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  107 

1.  On  the  petition  of  the  executive  branch  of  the  local  Council,** 
pursuant  to  a  joint  resolution  of  the  executive  branch  and  the  com- 
munal council;  or 

2.  On  the  petition  of  the  owners  of  more  than  half  of  the  area 
of  the  lots  to  be  replotted,  as  appears  on  the  land  and  building  reg- 
ister, provided  the  petitioners  include  more  than  half  the  owners.9" 
For  the  purpose  of  this  calculation,  when  land  is  held  by  several  in 
common,  a  fraction  of  the  area  of  the  common  land  equal  to  his  pro- 
portion of  ownership  therein  is  to  be  credited  to  each  such  owner. 

Restrictions  against  transfer  are  not  a  bar  to  replotting.  Under 
par.  I,  no.  2,  the  petition  shall  be  filed  with  the  executive  branch. 
If  in  this  case  the  replotting  district  is  so  delimited  that  the  munici- 
pality, in  accordance  with  sec.  13,  must  award  compensation  in  money, 
the  consent  of  the  executive  branch  is  necessary. 

Paragraph  I,  no.  i,  is  not  applicable  when  the  greater  part  of  the 
area  proposed  for  replotting  is  cultivated  by  the  owners  themselves  as 
market  gardens. 

SEC.  4.  If  the  executive  branch  has  decided,  in  pursuance  of  the 
previous  joint  resolution  of  the  executive  branch  and  the  council,  to 
petition  for  the  replotting  (sec.  3,  par.  i,  no.  i)  or  if  the  petition  of 
owners,  provided  for  in  sec.  3,  par.  i,  no.  2,  has  been  presented  to  it, 
then  it  shall  notify  the  building  police  authority M  of  the  proposed 
replotting.  It  shall  also  without  delay,  provided  it  has  not  yet  been 
done,  draw  up  a  schedule  in  which  the  lots  to  be  replotted,  with  the 
names  of  their  owners  and  their  register,  and  land  record  description, 
are  separately  entered  and  in  which  shall  be  stated  also  the  per- 
centage of  the  land  thrown  into  the  common  mass  by  the  parties  to 
the  replotting,  which  is  to  be  surrendered  and  devoted  to  public  streets 
and  squares  (sec.  10,  par.  2),  and  within  what  period  the  streets  and 
squares  established  by  the  building  plan  in  the  replotting  district  shall 
be  finished  and  ready  for  public  traffic  and  for  the  building  of  struc- 
tures on  the  land  abutting  on  them.  To  the  schedule  a  map  is  to  be 
annexed  on  which  shall  appear  the  location,  size,  permissible  inten- 
sity of  building  and  particular  use  of  the  lots  to  be  replotted.  The 
executive  branch  shall  throw  open  the  schedule  and  map  to  public 

"The  legislative  branch  of  the  city  government  consists  of  a  council 
and  an  upper  board  called  "magistral,"  whose  duties  are  for  the  greater 
part  administrative. 

95  Under  the  Hamburg  law  the  proceeding  can  be  begun  by  the  city 
authorities  or  by  a  petition  of  the  owners  of  more  than  half  the  area 
involved.  Under  the  Saxon  law  (sec.  54)  the  petition  may  be  brought 
either  by  the  city  authorities  or  by  more  than  half  the  owners  of  the 
lots  involved  who  together  own  more  than  half  the  area  in  question. 
Under  the  Baden  law  the  proceeding  must  have  the  support  both  of 
the  city  authorities  and  of  more  than  half  of  the  land  owners  who  also 
own  more  than  half  the  area  in  value. 

"The  building  police  are  state  officials. 


io8  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

inspection,  the  time  and  place  of  which  shall  be  made  public  in  the 
manner  usual  in  the  locality,  with  notice  that  objections  may  be  pre- 
sented to  the  executive  branch  within  a  fixed  time  not  to  be  less  than 
one  month.  A  notice  of  the  contents  of  their  objections  shall  be 
served  on  the  land  owners.  If  the  map  includes  lots  of  the  kind 
specified  in  the  last  sentence  of  sec.  2,  the  authority  concerned  shall 
be  specially  notified. 

SEC.  5.  The  executive  branch  shall,  so  far  as  possible,  dispose  of 
the  objections  raised,  by  consent,  and  then  without  delay  transmit  the 
petition  for  replotting,  together  with  the  papers  relating  to  the  matter, 
to  the  supervisory  (state)  committee."  The  supervisory  committee 
decides,  after  hearing  the  local  police  authorities,  with  regard  to  the 
existence  of  the  conditions  precedent  to  the  replotting  stated  in  sees, 
i  to  4,  and  the  validity  of  the  objections  not  disposed  of. 

With  the  consent  of  the  petitioners  it  may  decide  that  under  sec. 
3,  par.  i,  no.  2,  the  costs  of  the  proceedings  shall  be  borne  in  whole 
or  in  part  by  them. 

The  resolution  shall  be  served  on  the  executive  branch,  the  owners, 
and  the  parties  (sec.  57)  who  have  joined  in  the  proceeding;  and  the 
executive  branch  shall  make  it  public,  with  a  reference  to  the  con- 
tents of  sections  7,  27  and  50,  in  the  manner  usual  in  the  locality. 

SEC.  6.  The  petition  may  be  withdrawn  (sec.  3)  at  any  time  prior 
to  the  rendering  by  the  supervisory  committee  of  its  decision  (sec.  5, 
par.  i),  but  not  thereafter. 

Under  the  circumstances  provided  for  in  sec.  3,  par.  i,  no.  2,  the 
demand  of  the  owners  of  more  than  two-thirds  of  the  land  area  to 
be  taken  into  account,  under  the  provision  in  question  is  sufficient 
for  the  withdrawal  of  the  petition. 

The  costs  shall  be  paid  by  the  withdrawing  petitioners.  Under 
sec.  3,  par.  i,  no.  2,  the  costs  are  fixed  by  the  executive  branch  with- 
out appeal  and  may  be  collected  by  the  municipality  by  coercive 
administrative  proceedings. 

SEC.  7.  If,  under  sec.  3,  par.  i,  no.  i,  an  agreement"  with  regard 
to  the  replotting  is  made  in  binding  legal  form  between  the  munici- 
pality and  the  owners,  then,  on  petition  of  the  executive  branch  and 
a  majority  of  the  owners,  reckoned  in  accordance  with  the  provisions 
of  sec.  3,  par.  i,  no.  2,  the  replotting  proceeding  (sec.  8)  shall  not  be 
inaugurated. 

If  the  agreement  embraces  only  a  part  of  the  replotting  district, 
the  replotting  proceeding  may  be  dispensed  with  as  provided  in  par. 
i,  provided  that  the  object  of  the  replotting  can  be  substantially 

•*  Bczirksausschuss.  Prussia  is  divided  into  provinces,  the  provinces 
into  Bezirke,  or  large  administrative  units,  and  the  Bezirke  into  smaller 
unit-;,  called  Kreise,  translated  "districts." 

"A  translation  of  an  agreement  of  this  sort,  made  shortly  before 
the  war,  will  be  found  on  p.  123  of  this  work. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  109 

attained  although  limited  to  the  lots  included  in  the  agreement,  and 
the  owners  of  the  remaining  lots  have  agreed  to  such  limitation  or  a 
later  replotting  of  their  lots  is  not  thereby  precluded.  In  this  event 
the  lots  of  the  owners  who  have  not  joined  in  the  agreement  are 
excluded  from  the  replotting. 

In  order  to  facilitate  the  making  of  said  agreements,  pars,  i  and 
2,  the  supervisory  committee  may  fix  a  suitable  period  prior  to  the 
expiration  of  which  the  replotting  proceeding  shall  not  be  inaugu- 
rated. It  shall  fix  such  a  period  on  petition  of  the  executive  branch, 
or  of  at  least  such  a  majority  of  the  owners,  as  in  the  judgment  of 
the  supervisory  committee  under  the  conditions  of  par.  2,  would 
together  with  the  executive  branch  be  authorized  to  present  such  a 
petition. 

The  decisions  under  pars,  i  to  3  shall  be  rendered  by  the  super- 
visory committee  in  administrative  proceedings.  The  decision  under 
par.  3  shall  be  final. 

SECOND  PART 
THE  REPLOTTING  PROCEEDING 

/.     The  Preliminary  Resolution:  The  Replotting  Commission 

SEC.  8.  When  the  statutory  prerequisites  to  the  beginning  of  the 
replotting  proceeding  are  finally  established,  then  the  president  of  the 
District "  orders  its  beginning  and  names  a  commission  to  carry  out 
the  process.1 

The  commission  shall  have  as  members  two  deputies  of  the  dis- 
trict president,  of  whom  one  shall  be  made  chairman  and  the  other 
vice-chairman,  as  well  as  at  least  one  member  who  shall  be  an  expert 
in  building  matters,  one  an  expert  in  law  and  qualified  to  be  a  judge, 
one  a  certified  surveyor,  and  one  an  expert  in  the  appraisal  of  land. 
Members  of  the  executive  branch  cannot  be  members  of  the  com- 
mission. 

Before  the  naming  of  the  members  of  the  commission  the  executive 
branch  and  the  owners  shall  be  given  an  opportunity  to  nominate  and 
be  heard  with  regard  thereto. 

The  members  are  entitled  to  repayment  of  actual  disbursements 
and  to  fees  as  established  in  the  existing  provisions  for  experts  in 
legal  proceedings. 

The  commission  isl  without  prejudice  to  the  provisions  of  sec.  36 
par.  2,  legally  qualified  to  render  its  decisions  when  all  the  members 
are  notified  to  be  present  for  the  purpose  and  the  chairman  or  vice- 

89  In  this  case  the  larger  administrative  district  is  meant.  The  president 
is  chairman  of  the  supervisory  committee. 

1  The  "Lex  Adickes"  is  the  only  law  which  provides  for  a  special  com- 
mission; in  the  other  laws  the  work  is  done  by  the  regular  authorities. 


no          "THE  LAW  OF  CITY  PLANNING  AND  ZONING 

chairman  and  at  least  half  of  the  members  are  present;  the  decisions 
are  by  majority  vote ;  in  cases  of  tie  the  vote  of  the  chairman  decides. 

The  commission  is  in  legal  and  other  proceedings  represented  by 
its  chairman. 

The  records  of  the  commission  are  public;  their  register  and  the 
plan  of  division  shall  be  deemed  to  be  judicial  records. 

The  beginning  of  the  proceeding  and  the  naming  of  the  commis- 
sion shall  be  made  public  in  the  manner  usual  in  the  locality. 

2.    Entry  of  Pendency  of  Replotting 

SEC.  9.  On  the  request  of  the  commission  the  land  record  office 
shall  enter  in  the  land  books  of  the  lots  to  be  replotted,  the  fact  that 
the  replotting  proceedings  have  been  begun  (Entry  of  Pendency  of 
Replotting). 

It  shall  be  the  duty  of  the  commission  to  obtain  authentic  infor- 
mation with  regard  to  the  contents  of  the  land  books.  When  neces- 
sary it  shall  require  the  land  record  office  to  give  it  abstracts  for  this 
purpose.  Even  when  certified  abstracts  are  furnished,  only  actual 
disbursements  shall  be  charged. 

The  entries  subsequent  to  the  entry  of  the  Pendency  of  the  Replot- 
ting shall  be  communicated  by  the  land  record  office  to  the  com- 
mission. 

In  so  far  as  the  land  book  has  not  yet  been  established,  the  above 
provisions  are  applicable  to  the  other  legal  books. 

j.    Principles  of  Replotting 

SEC.  10.  The  lots  noted  for  replotting  shall  be  united  in  a  single 
mass.  In  the  mass  shall  be  thrown  also  the  existing  public  roads 
and  squares. 

From  the  common  mass  there  shall  at  once  be  excluded  in  the 
division  and  assigned  to  the  municipality  or  other  party  whose  duty 
it  is  to  maintain  thoroughfares,  the  land  necessary  for  public  streets 
and  squares.  By  such  assignment  the  municipality  and  the  other 
parties  whose  duty  it  is  to  maintain  ways,  shall  be  deemed  to  be  com- 
pensated for  the  surrender  of  the  public  ways  and  squares. 

The  rest  of  the  mass  shall  be  divided  among  the  owners. 

SEC.  II.  Full  compensation  in  accordance  with  the  provisions  of 
sees.  12  to  21  shall  be  made  to  the  parties  (sec".  57,  pars.  2  to  5)  con- 
cerned in  the  replotting. 

SEC.  12.  The  division  of  the  rest  of  the  mass  mentioned  in  sec. 
10,  par.  3  shall  be  made  in  a  suitable  and  equitable  manner  and,  as 
far  as  possible,  so  that  the  total  area  shall  be  assigned  to  the  owners 
in  the  proportion  in  which  the  former  total  mass  was  divided  among 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  in 

them.1  In  so  doing  the  lots  shall,  as  far  as  possible,  be  laid  out  at 
right  angles  to  the  streets  and  squares  and  in  the  same  location  in 
which  they  were  before  the  replotting.  Especial  endeavor  shall  be 
made  that  built  up  lots  and  lots  to  which  under  sec.  14,  a  special  value 
must  be  given,  shall  (except  as  they  come  within  the  lines  of  streets 
or  squares,  or  must  be  otherwise  bounded)  be  assigned  to  their  former 
owners. 

If  the  land  thrown  into  the  mass  is,  in  its  different  parts,  dif- 
ferently encumbered,  or  if  the  lots  of  the  same  owner  differently 
encumbered  are  thrown  into  the  mass,  then  for  each  of  these  parts, 
or  for  each  lot,  or  in  each  case  for  the  greater  part  of  lots  which 
are  encumbered  in  the  same  way,  at  least  one  new  lot  shall  be 
assigned. 

SEC.  13.  The  owners  shall  be  compensated  in  money  for  the  land 
necessary  for  public  ways  and  squares  in  excess  of  the  area  of  such 
ways  and  squares  thrown  into  the  mass,  [in  so  far  as  the  land  exceeds 
30%  of  the  land  thrown  in  by  the  owners]  in  so  far  as,  under  sec.  j, 
par.  i,  no.  I,  the  land  exceeds  35%,  and  under  sec.  3,  par.  I,  no.  2,  it 
exceeds  40%  of  the  land  thrown  in  by  the  owners.* 

The  compensation  is  to  be  reckoned  as  a  fraction  of  the  total 
value  of  the  land  destined  for  streets  and  squares. 

SEC.  14.  In  addition  to  the  right  to  the  assignment  of  land,  the 
owners  have  also  the  right  to  compensation  in  money : 

1.  For  buildings  and  other  parts  and  appurtenances  of  the  lot 
thrown  in. 

2.  For  the  loss  of  value  by  reason  of  special  qualities  of  it  or 
investments  made  on  it,  in  so  far  as  an  adequate  compensation  is  not 
afforded  by  the  lot  assigned. 

3.  For  the  loss  of  income  from  the  use  of  buildings  or  the  spe- 
cial condition  or  use  of  the  lot  (factories,  truck  gardens,  nurseries, 
clay  and  loam  pits  and  the  like). 

An  increase  in  value  resulting  from  the  anticipation  or  beginning 
of  replotting  shall  not  be  taken  into  consideration  in  this  connection. 

SEC.  15.  If  the  lot  thrown  in  is  subject  to  claims  which,  in  accord- 
ance with  sec.  42,  par.  i,  and  2,  are  extinguished  and  for  which  in 
accordance  with  sec.  20  compensation  must  be  accorded,  then  the 
commission  may  impose  upon  the  owner  the  obligation  to  pay  a  sum 
of  money  not  to  exceed  the  amount  by  which  the  value  to  him  of  the 
lot  thrown  in  was  diminished  by  the  encumbrance  (contribution). 

The  contribution  shall  be  paid  to  the  municipality.     On  demand, 

2  Under  the  other  laws  the  basis  of  reassignment  is  the  ratio  of  value 
of  the  lot  thrown  in  to  the  value  of  the  replanned  area,  exclusive  of 
streets,  squares,  etc. 

8  By  an  amendment  passed  July  8,  1907  (G.  S.,  p.  259),  the  words  in 
brackets  were  omitted,  and  the  words  in  italics  inserted  in  their  place. 
The  ratio  which  is  appropriated  without  payment  varies  in  different  laws. 


ii2  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

however,  the  owner  shall  be  allowed  to  postpone  settlement,  on  pay- 
ment of  3J^%  interest,  until  the  sale  of  the  lot  or  building  on  it. 

SEC.  16.  In  so  far  as  the  value  of  the  allotments,  on  the  basis  of 
sees.  1 1  to  14,  for  any  reason  is  less  than  the  worth  of  the  lot  thrown 
in,  the  owners  shall  have  a  claim  for  a  further  compensation  in 
money. 

A  greater  value  which  the  lot  thrown  in  obtains  by  reason  of  the 
proposed  or  inaugurated  replotting  shall  in  this  connection  be  dis- 
regarded. 

The  lot  assigned  shall  be  appraised  at  the  value  which  it  has 
attained,  after  the  replotting,  at  the  time  at  which  it  is  transferred  in 
accordance  with  the  declaration  of  transfer  (sees.  40  to  42). 

SEC.  17.  Lots  thrown  into  the  mass  whose  areas  are  so  small  that 
by  themselves  they  could  be  replaced  only  by  lots  that  are  unfitted  for 
building  purposes  are,  when  they  belong  to  the  same  owner,  to  be 
combined. 

If  they  belong  to  different  owners,  then,  with  the  consent  of  their 
owners,  they  are  to  be  united  in  common  ownership,  so  that  in  their 
place  lots  capable  of  building  development  can  be  assigned;  and  the 
assignment  is  to  be  made  with  a  fixing  of  the  proportion  of  the 
ownership  as  held  in  common.  The  commission  shall  use  their  best 
efforts  to  bring  about  the  necessary  agreement. 

If  the  lots  which  are  to  be  united  (par.  2)  are  differently  encum- 
bered, then  the  provisions  of  sec.  12,  par.  2,  shall  apply. 

SEC.  18.  If  the  agreement  mentioned  in  sec.  17,  par.  2  is  not 
reached,  the  full  compensation  for  the  lot  thrown  in  shall  be  paid 
entirely  in  money: 

1.  On  the  petition  of  the  executive  branch,  when  the  area  of  the 
lot  is  so  small  that  for  it  only  a  lot  unsuited  for  building  develop- 
ment can  be  assigned,  and  when  in  this  case  the  purpose  of  the  replot- 
ting would  fail  of  accomplishment  or  would  be  materially  impaired. 

2.  On  petition  of  the  owner  when  the  area  in  consequence  of 
the  replotting  would  be  so  lessened  that  the  lot  assigned  would  no 
longer  be  fitted  for  building  purposes. 

In  the  fixing  of  the  compensation  the  provisions  of  sec.  16,  par. 
3,  shall  apply  with  the  limitation  that  the  amount  of  compensation 
shall  be  diminished  by  the  amount  of  the  contribution  to  the  replot- 
ting that  would  otherwise  be  imposed  upon  the  owner. 

Parts  of  the  remaining  mass  (sec.  10,  par.  3)  which  would  be 
equivalent  to  a  lot  such  as  is  described  in  the  first  paragraph  (sec. 
12)  may  be  excluded  from  the  division  to  all  the  owners  and  in 
whole  or  in  part,  with  their  consent,  on  compensation,  be  assigned 
to  one  or  more  owners.  With  their  consent,  on  payment  of  compen- 
sation by  them,  the  payment  of  this  compensation  shall  be  imposed 
upon  the  owners  to  whom  the  assignment  is  made  (recompense). 
The  provisions  of  sec.  16,  par.  3  shall  apply. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  113 

SEC.  19.  The  commission  decides  as  to  suitability  for  building 
development  (sees.  17,  18)  after  hearing  the  building  police  authori- 
ties. 

SEC.  20.  Parties  whose  rights  in  a  lot  are  extinguished  (sec.  42, 
par.  2  sentence  3  or  in  connection  with  par.  i,  sentence  3)  or  changed 
by  order  of  the  commission  (sec.  25,  pars,  i,  2),  as  well  as  tenants 
and  leaseholders  whose  rights,  under  sec.  42,  par.  4,  are  extinguished, 
shall  be  specially  compensated  for  the  damage  they  suffer  through 
the  replotting,  in  so  far  as  the  indemnity  is  not  included  in  the  dam- 
ages accorded  them  under  sees.  14,  16,  18  and  31. 

SEC.  21.  In  other  respects  the  provisions  of  sees.  7  to  n  and  13 
of  the  Law  of  Expropriation  of  Land,  of  June  u,  1874  (G.  S.,  p. 
221),  in  so  far  as  provision  therefor  is  not  made  in  this  law,  apply 
as  to  damages,  except  that  the  municipality  shall  be  considered  the 
person  undertaking  the  enterprise.4 

SEC.  22.  The  building  plan  for  the  replotting  district  shall  not 
be  changed  during  the  replotting  proceeding  without  the  consent  of 
the  commission.  The  commission  may,  however,  as  an  aid  to  the 
carrying  out  of  the  replotting,  petition  the  executive  branch  for  a 
change  in  the  building  plan  in  the  manner  prescribed  in  the  Statute 
with  regard  to  the  Laying  Out  and  Change  of  Streets  or  Squares  in 
Cities  and  Country  Places,  of  July  2,  1875  (G.  S.,  p.  561)." 

SEC.  23.  The  commission,  after  hearing  the  street  building  police 
authorities,  shall  decide  within  what  time  the  streets  and  squares  in 
the  replotting  district  shall  be  made  ready  for  public  traffic  and  for 
building  on  abutting  land.  A  merely  temporary  construction  may, 
however,  be  allowed  for  these  purposes,  and  recognized  as  sufficient. 
The  delay  allowed  may  be  different  in  different  parts  of  the  replot- 
tirfg  district.  After  the  expiration  of  the  period,  the  building  permit 
cannot  be  refused  on  the  ground  that  the  construction  has  not  yet 
been  done.'  Under  sec.  3,  par.  I,  no.  i,  the  delay,  without  prejudice 
to  any  other  agreement  between  the  municipality  and  the  owners 
interested,  shall  not  exceed  the  period  of  four  years. 

In  so  far  as  the  planned  streets  and  squares,  up  to  the  time  of  the 
replotting,  are  not  constructed  and  the  lots  thereafter  need  temporary 
approaches  or  ways,  existing  public  ways  that  are  destined  to  be 
abolished  or  shifted  may  be  temporarily  maintained.  In  so  far  as 
this  is  not  done,  it  shall  be  the  duty  of  the  municipality  to  construct 
temporary  approaches  and  ways. 

*  The  law  referred  to  is  the  general  law  of  Prussia  for  the  con- 
demnation of  private  property  for  public  use ;  and  the  provisions  with 
regard  to  damages  are  very  much  like  the  laws  on  the  subject  in  this 
and  other  countries. 

5  A  translation  of  this  statute  will  be  found  on  p.  466  of  this  work. 

8  Under  the  Prussian  law  and  that  of  a  number  of  other  states,  the 
city  can  pass  a  local  statute  forbidding  building  on  unfinished  streets. 
The  reason  and  effect  of  such  a  law  are  explained  on  p.  455  of  this  work. 


ii4          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

On  petition  of  the  municipality  this  duty  shall  not  be  so  imposed, 
and  the  interested  owners  shall  receive  compensation  in  money  when 
the  construction  would  be  too  expensive  under  the  circumstances. 
This  provision  shall  not  apply  when  without  such  construction  the 
access  to  a  built  up  lot  or  a  lot  used  for  trade  purposes,  which  remains 
in  the  possession  of  the  owner,  would  be  prejudiced. 

SEC.  24.  The  expenditures  necessary  under  sees.  13,  14,  16  to  23, 
shall  be  met  by  the  municipality. 

SEC.  25.  In  order  to  attain  the  object  of  the  replotting  proceed- 
ing the  commission  may  maintain  existing  easements  or  change  them 
or  impose  new  easements. 

Other  real  rights  which,  under  sec.  42,  par.  2,  sentence  3,  in  con- 
nection with  par.  i,  sentence  3  would  be  extinguished  may,  reserving 
any  claim  for  indemnity  (sec.  20),  be  transferred  by  the  commission 
to  the  lot  assigned,  in  so  far  as  they  can  be  exercised  with  relation 
to  the  lot  without  material  loss  to  those  interested  in  that  right  and 
do  not  conflict  with  the  objects  of  the  replotting. 

So  far  as  necessary  the  commission  shall  also  dispose  otherwise 
of  the  public  burdens  existing  on  the  lots  as  at  present  owned  or  the 
burdens  to  be  imposed  on  its  future  ownership. 

SEC.  26.  The  commission  shall,  so  far  as  possible,  decide  upon 
the  provisions  in  the  plan  of  division,  particularly  those  with  regard 
to  the  division  of  the  land  (sec.  12),  in  concert  with  those  interested, 
and  shall  use  special  efforts  to  bring  about  agreements  through  which 
the  payment  of  indemnities  in  money  shall  be  lessened  or  avoided. 
It  shall  also  take  care  that  the  procedure  is  directed  against  the 
right  parties. 

SEC.  27.  If  an  agreement,  as  provided  for  in  sec.  7,  par.  I,  is 
reached,  then  the  commission  is  bound  by  its  terms. 

If  an  agreement,  as  provided  for  in  sec.  7,  par.  2,  is  reached,  then 
the  district  committee  shall  decide  whether  the  object  of  the  replot- 
ting can  be  substantially  attained  with  its  limitation  to  the  lots 
affected  by  the  agreement.  If  this  is  so  and  if  the  owners  of  the 
remaining  lots  agree  to  the  limitation,  or  if  a  later  replotting  of  their 
lots  is  not  thereby  prevented,  then  the  district  committee  shall  exclude 
from  the  replotting  the  lots  not  included  in  the  agreement.  With 
regard  to  the  lots  affected  by  the  agreement  the  provisions  of  par.  I, 
shall  apply. 

Agreements  made  by  the  owners  of  the  lots  in  one  or  more  blocks 
with  regard  to  the  replotting  of  their  lots  shall  be  respected,  in  so 
far  as  the  accomplishment  of  the  replotting  in  other  respects  in 
accordance  with  the  provisions  of  this  law  shall  not  be  prejudiced. 
These  provisions  also  hold  good  when  the  agreements  are  not  put 
into  a  form  binding  in  law. 

SEC.  2.S.  If  the  municipality,  under  sec.  13,  is  liable  for  compensa- 
tion, or  if  an  allotment  falls  to  it  under  sec.  18,  par.  3,  and  in  these 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  115 

cases  its  interest  is  in  serious  conflict  with  the  common  interests  of 
the  owners,  then  the  district  president  shall  appoint  for  the  owners 
an  attorney  and  administrator.  The  owners  as  a  whole  are  to  this 
extent  to  be  regarded  as  legally  capable  of  being  made  parties. 

The  attorney  and  administrator  shall  be  considered  a  statutory 
attorney.  He  can  be  chosen  from  among  the  owners.  On  demand 
he  shall  receive,  in  addition  to  repayment  of  actual  expenses,  a  rea- 
sonable remuneration  for  his  services ;  the  amount  shall  be  fixed  by 
the  commission;  payment  shall  be  made  by  the  municipality.  The 
expenses,  including  those  involved  in  legal  proceedings  (sec.  39), 
shall  be  advanced  by  the  municipality  to  the  attorney  and  adminis- 
trator on  demand. 

The  attorney  and  administrator  shall  receive  a  formal  appointment 
to  that  position. 

SEC.  29.  Expenditures  that  the  municipality  is  obliged  to  make 
in  payment  for  the  value  of  property  coming  to  it  cannot  be  included 
in  any  apportionment  among  the  owners.  This  applies  especially  to 
the  compensation  to  be  paid  under  sec.  13,  to  the  payment  for  which 
the  municipality  is  liable  in  case  of  an  allotment  to  it  (sec.  18,  par.  3), 
and  to  the  damages  to  be  paid  by  the  municipality  where  the  pro- 
visions of  sec.  9,  par.  i,  of  the  Law  with  regard  to  the  Expropriation 
of  Land,  of  June  n,  1874,  are  applicable  (sec.  21).' 

The  remaining  expenditures  for  which  the  municipality,  under 
sees.  24,  28,  par.  2  and  36,  par.  i,  sentence  2,  is  liable  (distributable 
expenditures)  shall  be  divided  among  the  owners  in  so  far  as  the 
executive  branch  petitions  therefor  (replotting  quota).  On  the  other 
side  of  the  account  and  to  be  deducted  from  the  total  of  the  expendi- 
tures that  can  be  distributed  are : 

*i.  The  contributions  and  recompenses  (sec.  15,  sec.  18,  par.  3) 
to  be  paid  to  the  municipality,  and  the  other  payments  to  be  made  it 
under  sec.  36,  par.  i,  sentence  2. 

2.  The  compensation  to  be  paid  by  the  municipality  under  sec. 
13,  as  well  as  the  recompense  which  it  must  make  in  case  of  an  allot- 
ment to  it  (sec.  18,  par.  3). 

SEC.  30.  The  distribution  of  the  distributable  expenditures  of 
the  municipality  (sec.  29,  par.  2)  is  made  in  proportion  to  the  gain 
accruing  to  each  owner  from  the  replotting  or — in  so  far  as  the 
application  of  this  standard  of  distribution  does  not  appear  to  be 
possible  or  appropriate — in  proportion  to  the  frontage,  the  area  and 
location  or  the  value  of  the  lot  assigned. 

On  petition  of  the  owners,  the  payment  of  the  replotting  contribu- 

T  The  paragraph  of  the  expropriation  law  referred  to  reads  as  fol- 
lows :  "When  only  a  part  of  a  lot  is  taken,  the  owner  has  the  right 
to  demand  that  the  expropriator  shall  take  and  pay  for  the  whole  of  it  if 
the  lot  is  so  divided,  that  the  remnant  can  no  longer  be  suitably  em- 
ployed for  its  former  use." 


ii6  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

tion  shall  be  postponed  until  the  sale  or  the  building  up  of  the  lot, 
on  payment  of  interest  at  the  rate  of  3l/2%. 

In  so  far  as  by  reason  of  the  distribution  of  the  replotting  con- 
tributions the  value  of  the  assignment  under  sec.  n  to  14,  less  the 
replotting  contribution,  would  be  smaller  than  the  value  of  the  lot 
thrown  in,  the  owner  shall  not  be  taken  into  account  in  that  distribu- 
tion; and  the  rule  shall  be  the  same  with  regard  to  the  owners  to 
be  compensated  under  sec.  16. 

SEC.  31.  In  so  far  as  the  total  amount  of  the  payments  men- 
tioned in  sec.  29,  par.  2,  nos.  i,  2  is  in  excess  of  the  total  amount  of 
the  replotting  contributions  that  can  be  distributed,  the  owners  shall 
receive  recompense  from  the  municipality  therefor.  The  recompense 
shall  be  made  in  accordance  with  the  provisions  of  sec.  30,  par.  i. 

SEC.  32.  The  petitions  mentioned  in  sec.  15,  sec.  18,  par.  I,  sec. 
23,  par.  3,  sec.  29,  par.  2,  must  be  made  at  latest  as  objections  to  the 
plan  of  distribution  (sec.  37). 

SEC.  33.  The  parties  concerned  shall  enforce  their  claims,  as  soon 
as  they  can  be  ascertained,  if  possible  before  the  commission  or  the 
supervisory  committee.  If  this  is  not  done,  then  the  commission  or 
the  supervisory  committee  may  impose  upon  those  concerned  the  cost 
arising  from  their  belated  enforcement. 

4.     Making  and  Establishing  the  Plan  of  Distribution 

SEC.  34.  In  conformity  with  the  provisions  of  sees.  10  to  31,  33, 
the  commission  shall  make  a  plan  of  distribution  with  map  annexed. 

This  plan  and  map  shall  show  the  old  ownership  and  the  new 
distribution.  In  this  connection  it  shall  show  the  individual  lots  with 
their  size  and  their  owners,  the  public  ways  to  be  discontinued  and 
those  to  be  changed  in  location,  the  approaches  and  ways  to  be  con- 
structed under  sec.  23,  the  arrangements  to  be  made  under  sec.  25, 
pars.  I,  2,  and  the  compensation  to  be  provided  for  under  sees.  II 
to  14,  16  to  24,  as  well  as  the  payments  to  be  required  in  accordance 
with  sees.  15,  18,  par.  3,  sees.  29,  30,  33.  It  must  also  appear  in  what 
way  under  sec.  12,  par.  2,  sec.  17,  par.  3,  these  requirements  are  met. 

SEC.  35.  The  commission  shall  hold  a  hearing  witli  regard  to  the 
plan  of  division  and  the  map  (sec.  34)  for  the  benefit  of  those 
concerned. 

To  it  the  municipality,  the  owners,  and  those  who  have  given 
notice  of  adhesion  to  the  proceedings,  shall  be  summoned  by  personal 
service;  the  notice  to  be  present  and  make  their  claims  shall  be  given 
to  the  others  interested  in  the  manner  customary  in  the  locality.  The 
notices  shall  contain  an  abstract  of  the  provisions  ^2,  33,  and 

give  notice  that  if  they  fail  to  appear,  the  decision  on  the  plan  of 
division,  the  fixing  of  any  money  payments,  contributions,  recom- 
penses and  distributable  expenditures,  the  payment  or  deposit  of  the 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  117 

fixed  money  recompenses  and  the  necessary  arrangements  under  sec. 
25,  will  occur  in  their  absence. 

At  the  hearing  everyone  interested  may  appear  and  urge  his 
interests.  If  necessary  the  hearing  shall  be  adjourned  to  another 
time  or  place. 

The  local  police  authorities  shall  be  given  an  opportunity  in  the 
proceeding  to  urge  the  interests  of  the  local  police.  It  shall  be  given 
special  notice  of  the  hearing  and  may  send  a  representative  to  it. 
The  provisions  in  the  plan  of  division,  so  far  as  they  are  of  local 
police  interest,  shall  be  determined,  so  far  as  possible,  in  agreement 
with  the  local  police  authority. 

SEC.  36.  The  commission  shall  decide  with  regard  to  the  plan 
of  division  with  map  annexed,  especially  with  regard  to  the  petitions 
of  those  interested  for  changes  or  additions,  and  when  necessary 
shall  correct  and  complete  the  plan  of  division  and  map  in  accordance 
with  these  decisions.  At  the  same  time  the  results  of  agreements 
which  the  parties  have  reached  with  regard  to  the  founding,  release, 
maintenance  or  change  of  real  rights  shall  be  made  a  part  of  the  plan, 
in  so  far  as  they  are  not  in  conflict  with  the  purpose  of  the  replotting 
proceeding. 

In  the  decision,  in  addition  to  the  chairman,  at  least  one  of  the 
expert  members  provided  for  in  sec.  8,  par.  2,  must  take  part. 

SEC.  37.  After  the  decision  has  been  rendered,  the  commission 
shall  place  the  plan  of  division  with  map  annexed  on  public  exhibition 
and,  at  a  time  appointed  therefor,  shall  show  the  owners  the  lots 
assigned  them  on  the  spot.  The  provision  of  sec.  4,  sentence  5  shall 
apply  in  this  connection,  with  the  modification  that,  in  the  notice  of 
the  opportunity  to  inspect,  the  chairman  of  the  commission  shall  be 
designated  to  receive  objections  to  the  plan  of  division.  In  addition, 
a  copy  of  the  plan  of  division  with  map  annexed  shall  be  sent  the 
municipality  and  the  owners,  and  notice  of  the  opportunity  to  inspect 
shall  be  given  to  the  other  parties  with  regard  to  whom  a  decision 
has  been  made  in  the  plan  of  division,  or  who  have  joined  in  the 
proceeding. 

The  time  within  which  objections  may  be  raised  begins  to  run 
against  the  parties  mentioned  in  the  foregoing  paragraph  upon  serv- 
ice, against  the  others  upon  the  public  exhibition  of  the  plan  of 
division. 

If  the  discontinuance  of  public  ways  is  under  consideration,  then 
the  road  police  authority  shall  be  notified.  Objections  to  the  discon- 
tinuance shall  be  disposed  of  as  a  part  of  the  replotting  proceeding. 

SEC.  38.  If  objections  are  raised  to  the  plan  of  division,  then 
the  commission  shall  endeavour  to  dispose  of  them  by  negotiation.  If 
they  are  not  successful  in  disposing  of  them,  then  the  papers  and 
negotiations,  with  a  report  in  detail,  shall  be  laid  before  the  district 
committee.  It  shall  give  a  final  decision  with  regard  to  the  objections, 


n8  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

If  objections  are  not  raised,  or  when  they  have  been  decided,  then 
the  establishment  of  the  plan  of  division  shall  take  place  through  final 
decision  of  the  district  committee. 

To  the  executive  branch  the  owners  and  the  attorney  and  adminis- 
trator (sec.  28),  a  copy  of  the  established  plan  of  division,  with  map 
annexed,  shall  be  sent,  to  the  other  parties  with  regard  to  whom  a 
decision  has  been  rendered  therein  or  who  have  taken  part  in  the 
proceeding,  a  notice  of  the  establishment  of  the  plan  of  division  shall 
be  given. 

The  executive  branch  shall  make  public  the  establishment  which 
has  occurred,  in  the  manner  usual  in  the  locality. 

5.    Legal  Remedies 

SEC.  39.  In  so  far  as  the  demands  for  compensation  in  money 
under  sees,  n,  13,  14,  16-23  are  concerned,  the  parties  in  interest 
may  bring  legal  proceedings  in  opposition  to  the  plan  of  division  from 
and  after  the  time  of  its  establishment.  The  complaint  may  be  in- 
stituted at  any  time  within  two  months  after  the  day  of  replotting 
(sec.  40,  par.  i). 

As  against  parties  to  whom  a  notice  of  transfer  shall  be  given 
(sec.  40,  pars,  i,  4)  this  period  ends  in  any  case  not  earlier  than 
two  months  after  service  of  notice. 

If  under  sec.  13  an  attorney  and  administrator  is  appointed  (sec. 
28),  his  complaint  shall  be  brought  against  the  municipality,  and  that 
of  the  municipality  against  him;  in  the  other  cases  it  is  to  be  brought 
by  the  owners  and  the  parties  named  in  sec.  57,  par.  2,  nos.  i,  2, 
Against  the  municipality  and  by  it  against  said  parties. 

Under  sec.  15  the  above  provisions  apply,  except  that  action  can 
be  brought  only  by  the  owners  whose  land  is  burdened. 

6.    Carrying  out  the  Plan  of  Division. 

SEC.  40.  The  carrying  out  of  the  plan  of  division  shall  not  be 
stayed  by  legal  proceedings.  It  is  effected  by  a  declaration  of  trans- 
fer to  be  issued  by  the  district  committee  by  final  decree.  In  it  the 
day  on  which  the  legal  changes  with  regard  to  lots  to  be  replotted 
shall  take  place,  shall  be  stated  (the  day  of  the  replotting). 

The  day  of  the  replotting  is  to  be  so  fixed  that  between  the  day 
of  notice  of  the  declaration  of  transfer  and  the  day  of  the  replotting, 
an  interval  of  at  least  one  month  shall  occur. 

The  declaration  of  transfer  shall  not  be  made  until  it  appears 
that  the  compensation  fixed  in  the  plan  of  distribution  under  sees.  14, 
16-23,  31.  ha*  been  paid  or  deposited.  This  declaration  may  be  made 
at  the  same  time  as  the  establishment  of  the  plan  of  division  (sec. 
38,  pars.  2,  3)  and  made  a  part  of  it. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  119 

In  addition  to  the  executive  branch,  the  owners  and  the  attorney 
and  administrator  (sec.  28),  the  other  parties  with  relation  to  whom 
a  decree  has  been  passed  in  the  plan  of  distribution  or  who  have 
taken  part  in  the  proceeding  shall  receive  notice  of  the  declaration 
of  transfer.  The  executive  branch  shall  without  delay  make  the 
declaration  of  transfer  known  in  the  manner  usual  in  the  locality. 

SEC.  41.  Upon  the  making  public  of  the  declaration  of  transfer 
the  municipality  obtains  the  right  to  lay  out  any  temporary  ap- 
proaches and  ways  (sec.  23,  par.  2)  to  be  constructed  in  accordance 
with  the  plan  of  division. 

SEC.  42.  When  the  declaration  of  transfer  is  made  public  in  the 
usual  manner,  then,  on  the  day  of  the  replotting,  the  provisions  of 
the  plan  of  division  become  effective.  The  former  rights  of  owner- 
ship in  the  lots  thrown  into  the  mass  are  extinguished.  At  the  same 
time  the  lots  thus  thrown  in  are  freed  from  all  private  land  encum- 
brances and  limitations;  especially  trusts,  entails,  feudal  obligations 
and  liens  for  money  lent. 

The  municipality  or  other  authority  obliged  to  maintain  ways 
becomes  owner  of  the  land  assigned  to  public  streets  and  squares 
under  sec.  10,  par.  2.  In  so  far  as  land  is  assigned  for  land  thrown 
in  under  sec.  12,  the  lot  assigned,  so  far  as  ownership  and  other  pri- 
vate right  relationships  mentioned  in  par.  i,  sentence  3  are  concerned, 
takes  the  place  of  the  lot  thrown  in.  From  such  transfers  to  the  lot 
assigned  are  excluded,  however,  in  so  far  as  not  otherwise  provided 
in  the  plan  of  division,  building  leases,8  servitudes,  the  right  of  re- 
purchase and  of  preferential  purchase  and  the  real  encumbrances 
not  consisting  solely  of  the  obligation  to  pay  money  or  render  the 
fruits  of  the  soil  or  personal  services. 

The  money  compensation  fixed  in  accordance  with  the  provisions 
oLsecs.  14,  16,  18,  pars,  i,  2,  sees.  23,  31,  39  takes  the  place  of  the 
lot  thrown  in,  in  so  far  as  the  legal  relations  mentioned  in  the  pre- 
vious paragraphs  are  concerned.  The  same  is  true  when  under  sees. 
14,  1 6,  18,  pars.  I,  2,  sees.  23,  31,  the  fixation  occurs  by  reason  of  an 
agreement. 

The  relationship  of  landlord  and  tenant  and  leasehold  relation- 
ship, by  reason  of  which  the  tenant  or  lessee  holds  the  lot  thrown  in, 
are  extinguished,  except  in  so  far  as  the  holding  remains  undiminished 
and  the  plan  of  division  does  not  otherwise  provide. 

SEC.  43.  On  request  of  the  commission  the  land  book  office  shall 
enter  in  the  land  book  the  legal  changes  that  take  place,  in  accordance 
with  the  provisions  of  the  plan  of  division  and  of  this  law,  with 
relation  to  the  rights  entered  in  the  land  book  or  secured  by  entry, 
and  shall  cancel  the  entry  of  pendency  of  replotting;  and  shall  also 
enter  in  the  land  book  that  the  lot,  in  accordance  with  the  provisions 

8  Erbbaurecht. 


120          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

of  sec.  15,  par.  2,  or  sec.  18,  par.  3,  is  liable  for  a  contribution  or 
recompense,  and,  in  accordance  with  the  provisions  of  sees.  29,  45, 
is  liable  for  a  quota.  With  the  request  are  to  be  submitted  the  before 
mentioned  abstracts  from  the  land  registry  book. 

The  request  is  to  be  made  without  delay  and  shall  indicate  ac- 
curately the  entry  to  be  made. 

In  so  far  as  the  land  book  is  not  to  be  considered  as  yet  estab- 
lished for  lots  of  land,  the  previous  provisions  shall  be  applicable 
with  respect  to  the  other  legal  books. 

SEC.  44.  The  provisions  of  sees.  37,  38,  47-49  of  the  Law  with 
relation  to  Condemnation  of  Land,  of  June  n,  1874,  and  arts.  35-41 
of  the  Law  carrying  out  the  Imperial  Law  with  regard  to  Compulsory 
Sales  at  Auction  and  Compulsory  Administration,  of  September  23. 
1899  (G.  S.,  p.  291),  applies  with  regard  to  the  deposit  and  care  of 
indemnities  in  money  in  case  lots  are  subject  to  trusts  or  entails  or 
leases  or  are  burdened  with  real  obligations,  mortgages,  ground  debts 
or  claims  for  rent. 

7.    Supplemental  Plan  of  Division 

SEC.  45.  If  the  expenses  of  the  municipality  (sec.  29,  par.  2) 
are  increased  by  reason  of  the  result  of  the  rise  of  legal  contro- 
versies, then  the  commission,  on  the  petition  of  the  municipality,  shall 
by  supplemental  action  impose  upon  the  owners  each  his  proportionate 
share  of  such  additional  amount. 

The  petition  shall  be  made  within  one  month  of  the  final  judgment 
of  the  last  pending  legal  controversy. 

If  the  expenses  are  lessened  for  the  reason  stated  in  par.  i,  sen- 
tence i,  then  the  saving  is  to  be  credited  to  the  owners  on  their  con- 
tributions, or  to  be  repaid  them.  If  an  agreement  in  this  matter  is 
not  reached,  then  the  executive  branch  shall  petition  the  commission 
to  prepare  a  supplemental  plan  of  division.  The  petition  may  also  be 
made  by  an  owner. 

The  expenditures  arising  under  sec.  23,  par.  2,  in  so  far  as  they 
are  not  already  divided  under  sees.  29,  30,  34,  ff.,  may  be  taken  into 
account  in  the  supplemental  plan  of  division. 

The  provisions  of  sees.  16,  29,  30,  34-38,  shall  apply  to  the  supple- 
mental plan  of  division. 

SEC.  46.  In  so  far  as  the  assignments  under  sees.  11  ff.,  less  the 
replotting  contributions  (sec.  45),  would  no  longer  equal  the  value 
of  the  lot  thrown  in,  according  to  sec.  16,  pars.  I,  2,  the  owner  may 
bring  legal  proceedings  against  the  municipality  for  the  cancellation 
of  the  replotting  contribution  or  the  repayment  of  the  amount  paid. 
The  complaint  may  be  brought  within  three  months  of  the  day  on 
which  the  replotting  contribution  is  finally  fixed.  The  replotting 
contributions  which  cannot  be  recovered  under  par.  i,  can  be  dis- 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE 


121 


tributed  by  a  supplemental  plan  of  subdivision.     The  provisions  of 
sec.  45,  pars,  i,  5  apply. 

8.    Service 

SEC.  47.  The  provisions  of  the  General  Administrative  Law  of 
July  30,  1883,  with  regard  to  the  service  of  notices  by  the  super- 
visory committee  (G.  S.,  p.  195  ff.)  and  the  regulations  rendered 
for  the  carrying  out  of  the  above  laws,  shall  apply  to  service  by  the 
commission. 

p.    Particular  Provisions 

SEC.  48.  The  payments  to  be  made  to  the  municipality  under  the 
plan  of  division  may  be  collected  by  it  by  coercive  administrative 
proceedings.  The  contributions  (sec.  15),  recompenses  (sec.  18, 
par.  3)  and  replotting  contributions  (sees.  29,  30,  45,  sec.  46,  par.  2) 
shall  be  deemed  to  be  ordinary  encumbrances. 

SEC.  49.  If  the  obligations  to  make  contributions,  recompenses 
and  obligatory  contributions  are  extinguished,  then  the  executive 
branch  shall  apply  to  the  land  book  office  or  the  lower  court  for  can- 
cellation of  the  record  of  the  pendency  of  the  same. 


THIRD  PART 
FINAL  PROVISIONS 

SEC.  50.  If  the  agreements  provided  for  in  sec.  27  are  entered 
into  in  a  legally  valid  form  and  if  the  supervisory  committee  is  of 
opinion  in  the  case  mentioned  in  sec.  27,  par.  2  that  the  conditions 
mentioned  in  the  second  sentence  of  said  paragraph  2  have  been  ful- 
filled, then  the  committee  shall  by  decree  end  the  proceedings,  in  so 
far  as  the  executive  branch  and  a  majority  of  the  owners  reckoned  in 
accordance  with  the  provisions  of  sec.  3,  par.  i,  no.  2  petition  for 
such  ending. 

SEC.  51.  The  supervisory  committee  may  also  stop  the  proceed- 
ings by  decree  on  petition  of  the  executive  branch  when  on  account 
of  the  position  of  affairs,  especially  in  the  light  of  claims  for  com- 
pensation advanced  or  of  the  danger  of  the  raising  of  such  claims, 
there  is  the  fear  that  the  carrying  out  of  the  replotting  proceeding 
will  be  uneconomic  or  involve  an  unreasonable  burden  for  the  mu- 
nicipality, or  when  the  carrying  out  of  the  proceeding  for  other  rea- 
sons than  those  provided  for  in  sec.  50  appears  to  be  needless.  Be- 
fore such  a  decision  is  made  an  opportunity  shall  be  given  to  the 
other  parties  in  so  far  as  they  have  taken  part  in  the  proceeding,  to 
be  heard  with  regard  to  the  petition.  Such  a  petition  must  be  brought 
before  the  issuance  of  the  decree  of  establishment  (sec.  38,  par.  2). 


122  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

In  the  case  provided  for  in  sec.  3,  par.  I,  no.  I,  the  municipality  shall 
repay  the  owners  the  necessary  disbursements  they  have  incurred. 

SEC.  52.  If  the  proceeding  is  discontinued  under  sees.  50,  51, 
then  on  request  of  the  commission  the  land  book  office  or  the  lower 
court  shall  cancel  the  notice  of  pendency  of  the  replotting. 

SEC.  53.  After  the  building  police  authority  has  been  notified 
of  the  intended  replotting  (sec.  4),  the  permit  for  the  erection  of 
buildings  on  lots  for  the  replotting  of  which  a  petition  has  been 
filed  shall  not  be  issued  without  previously  hearing  the  executive 
branch  with  relation  thereto.  The  building  police  authority  may 
refuse  the  permit,  or  issue  it  conditionally  if  by  the  erection  of  the 
building  the  replotting  would  be  made  more  difficult. 

No  compensation  will  be  allowed  for  such  limitation  of  the  free- 
dom to  build. 

SEC.  54.  The  costs  of  the  proceeding,  without  prejudice  to  the 
provisions  of  sees.  5,  6,  33,  shall  be  borne  by  the  municipality. 

With  regard  to  the  costs,  dues,  and  stamps,  in  so  far  as  in  this 
law  it  is  not  otherwise  provided,  the  provisions  of  sec.  43  of  the 
Law  with  regard  to  the  Condemnation  of  Ownership  in  Land,  of 
June  II,  1874,  shall  also  apply. 

SEC.  55.  In  so  far  as  expenditures  of  the  municipality  which 
cannot  be  distributed  (sec.  29,  par.  i)  or  which  although  distributable 
(sec.  29,  par.  2,  sec.  45,  sec.  46,  par.  2)  cannot  be  distributed  on  ac- 
count of  the  lack  of  a  legal  prerequisite,  or  the  costs  of  the  procedure 
(sec.  54,  par.  i)  which  fall  to  the  municipality,  are  concerned,  they 
cannot  be  shifted  or  specially  imposed  in  whole  or  in  part  on  the 
owners  of  the  replotting  district,  whether  by  imposing  liabilities  or 
requiring  contributions. 

SEC.  56.  The  periods  named  in  this  law  for  the  performance  of 
the  acts  named,  are  the  full  periods  allowed  therefor. 

SEC.  57.  Parties  within  the  meaning  of  sees.  4-6,  are, — in  addi- 
tion to  the  municipality, — the  owners,  the  mortgagees,  and  ground 
rent  creditors  and  those  parties  who  are  entitled  to  usufruct  or  an 
inheritable  building  right  in  the  lot  to  be  replotted. 

As  parties  within  the  meaning  of  sees.  II,  ff.,  are  reckoned  in 
addition  to  the  municipality,  the  owners  and  the  attorney  and  adminis- 
trator (sec.  28)  the  following: 

1.  Those  in  whose  favor  a  right  has  been  entered  in  the  land 
book  or  any  other  legal  book,  or  a  right  is  secured  by  such  entry. 

2.  Those  who  have  any  other  right  in  a  lot  to  be  replotted,  or 
in  a  claim  which  is  a  lien  on  the  lot,  the  tenant  or  lessee  who  has  IH m 
given  possession  of  the  lot  by  reason  of  the  lease,  and,  in  case  of 
compulsory   sale   at   auction   or   receivership,   the   creditor   bringing 
action. 

The  rights  of  the  person  having  the  right  of  possession  are  the 
same  under  this  statute  as  the  rights  of  the  owner. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  123 

Parties  whose  right  is  not  entered  in  the  land  book  or  any  other 
legal  book  must,  on  the  demand  of  the  municipality,  an  owner,  the 
commission  or  other  authority  before  whom  the  proceeding  is  pend- 
ing, establish  their  right;  prior  to  such  establishment  such  parties 
may  be  excluded  from  participation  in  the  proceeding. 

If  a  lawsuit  is  pending  with  regard  to  a  right  upon  which  a  claim 
to  participation  in  the  proceeding  could  be  based,  then  both  parties 
to  the  suit  shall  be  deemed  parties  to  the  proceeding. 

SEC.  58.     This  statute  goes  into  effect  January  i,  1903. 

The  Minister  of  Public  Works  and  of  the  Interior  shall  see  to 
the  enforcement  of  the  law. 

Dated  July  28,  1902. 

REPLOTTING  AGREEMENT  UNDER  LEX  ADICKES 

Replotting  and  Division  agreement  by  and  between  the  munici- 
pality of  Frankfort-on-the-Main,  represented  by  the  City  Treasury, 
party  of  the  first  part,  and  [here  follow  the  names  of  the  land 
owners]  parties  of  the  second  part,  subject  to  the  ratification  of  the 
Superior  City  authorities,  as  well  as  (by  way  of  supervision),  of 
that  of  the  supervisory  committee  at  Wiesbaden,  as  follows : 

SEC.  i.  The  above  mentioned  parties  hereby  unite  into  a  single 
common  tract  their  lots  of  land  between  the  Nordring,  the  Eschers- 
heimer  Landstrasse,  the  Klettenbergstrasse,  the  Cronstetten  Strasse 
and  the  Eckenheimer  Landstrasse,  described  in  a  certain  proposed 
plan  of  replotting,  drawn  up  by  the  survey  office  of  the  Department 
of  Streets  and  Sewers  and  dated  December  18,  1908,  and  numbered 

and  hereby  grant  each  to  the  other  the  right  of  ownership 

to  an  undivided  share  in  the  common  tract  created  proportionate  to 
the  area  of  the  lot  thrown  in  ... 

The  contracting  parties  hereby  apply  to  the  Royal  Registry  Office 
or  the  Survey  Office  of  the  Department  of  Streets  and  Sewers  for 
the  registration  of  the  new  common  tract,  and  the  calculation  of  the 
size  of  the  undivided  shares  therein. 

The  contracting  parties  hereby  agree  that  the  value  of  the  in- 
dividual undivided  snares  in  the  new  common  tract  equals  the  value 
of  the  individual  lots  in  question  thrown  in. 

SEC.  2.  All  the  parties  to  this  contract,  as  joint  owners  of  the 
tract  of  land  held  in  common  created  under  sec.  i,  hereby  so  partition 
said  common  property  that  to  each  shall  be  assigned  in  severalty 
the  portion  of  the  newly  created  lots  described  in  said  proposed  plan 
of  replotting  as  follows: 

[Here  follows  a  description  of  the  several  lots.] 

SEC.  3.  The  parties  to  this  contract  agree  that  the  value  of  the 
lot  of  land  or  portion  assigned  to  each  of  them  under  sec.  2  is  equal 
to  the  value  of  his  undivided  share  in  the  combined  tract  of  land 


I24  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

thrown  in  for  replotting;  so  that,  except  under  the  provisions  of  sec. 
6,  no  payment  shall  be  made  by  any  party. 

All  the  parties  declare  themselves  satisfied  with  the  proposed  plan 
of  replotting,  and  map  annexed,  the  division  and  assignment  of  lots 
of  land  in  return  for  the  lots  thrown  in,  as  well  as  the  percentage  of 
land  necessary  to  be  surrendered  for  the  proposed  streets  within  the 
replotting  district,  and  bind  themselves  accordingly  at  any  time  at 
once  to  make  or  receive  the  necessary  cessions,  to  effect  the  neces- 
sary conveyances,  cancellations,  releases,  new  hypothecations,  etc.,  at 
once  to  place  at  the  disposal  of  the  municipality  of  Frankfort-on-the- 
Main,  cleared  for  the  laying  out  and  construction  of  streets,  as  well 
as,  in  accordance  with  the  statute  of  July  2,  1875,  or  local  statute,* 
to  surrender,  without  charge  and  free  from  encumbrance,  the  por- 
tions of  their  holdings  falling  within  the  lines  of  said  streets,  to  cause 
all  the  registrations  and  surveys  necessary  for  these  purposes  to  be 
made,  to  execute  the  necessary  authentications  and  make  the  neces- 
sary dispositions  and  to  bear  the  resulting  stamp  and  other  costs — 
excepting  the  costs  of  survey — in  proportion  to  their  land  areas 
thrown  into  the  replotting,  in  so  far  as  the  parties  do  not  enjoy 
freedom  from  stamps  and  duties. 

SEC.  4.  The  contracting  parties  bind  themselves  to  convey  to 
the  new  owners  the  lots  assigned  to  them  in  accordance  with  sec.  2, 
free  from  mortgage  encumbrances,  liens,  or  other  burdens.  .  .  ." 

SEC.  5.  The  construction  of  the  streets  within  the  replotting  dis- 
trict, as  well  as  the  permission  to  build  on  land  abutting  on  these 
streets,  is  subject  to  the  conclusion  of  a  separate  agreement  with  the 
Department  of  Streets  and  Sewers,  which  shall  be  concluded  at  latest 
October  I,  1910." 

SEC.  6.  The  contracting  parties  agree  that  the  city  of  Frankfort- 
on-the-Main,  in  return  for  the  extra  expense  incurred  or  to  be  in- 
curred by  it  for  the  purchase  of  the  realty  known  as  No.  179  Fxken- 
heimer  Landstrasse  and  No.  7  Kuhhornshofstrasse,  needed  for  lay- 
ing out  streets,  shall  at  once  be  assigned  a  net  area  of  26  ares,  .06 
square  meters. 

SEC.   7.     Restrictions  on   Use  of  Land  and   Buildings  thereon. 

In  order  that  the  replotting  district  may  have  and  retain  the  char- 

*The  statute  of  July  2,  1875,  is  the  Prussian  City  Planning  Statute. 
A  translation  of  this  statute  will  be  found  on  p.  466  ff.  of  this  work.  That 
statute  provides  for  the  surrender  of  land  by  the  owners,  under  certain 
conditions,  for  new  streets,  and  for  the  passing  of  local  statutes  vary- 
ing these  provisions  in  certain  respects,  if  the  city  so  desires. 

10  In  some  contracts  the  city  agrees  to  execute  at  its  own  cost  certain 
clearance    and    construction    work    of    peculiar    character    and    unusual 
expense. 

11  Often  the  replotting  contract  is  made  subject  to  the  execution  of  a 
given  contract  for  street  construction,  a  copy  of  which  is,  in  such  cases, 
annexed. 


EXCESS  CONDEMNATION  ETC.  IN  EUROPE  125 

acter,  in  part  of  a  district  of  detached  houses,  in  part  of  a  better  class 
residential  district,  the  following  agreements  are  made  by  and  be- 
tween the  parties  to  this  contract: — 


(l)  For  building  in  the  replotting  district,  in  addition  to  the 
building  police  regulations  at  any  time  in  force,  the  following  special 
rules  shall  be  made  and  established  by  entry  of  a  servitude : 

[Here  follow  provisions  for  the  approval  of  plans  by  the  building 
commissioner,"  the  exclusion  of  business  except  at  certain  places, 
and  the  minimum  number  of  rooms  in  houses  on  certain  streets.]  u 

ii 

For  the  regulation  of  building  in  [a  specified  part  of  the  replotting 
district]  in  addition  to  the  rules  to  be  introduced,  as  provided  in  I, 
above,  by  the  entry  of  a  servitude,  there  shall  be  building  police  regu- 
lations substantially  to  the  following  effect,  issued  by  the  building 
police  by  ordinances  as  an  addition  or  amendment  to  the  Building 
Police  Ordinances  with  Regard  to  Building  in  the  Outer  City : — 

[Here  follow  provisions  with  regard  to  the  height  of  houses,  the 
permitted  number  of  apartments  in  them,  rear  building  lines,  distance 
between  houses,  and  the  care  of  front  lawns.] 

The  restrictions  in  building  on  and  use  of  land,  provided  for  in  I, 
above,  shall  be  considered  as  a  limited  personal  servitude  in  favor  of 
the  municipality  and  as  an  encumbrance  on  the  land  in  question,  as 
provided  for  in  sees.  1090  and  1092  of  the  Civil  Code  "  and  shall  be 
entered  in  the  land  book."  Sec.  1091  of  the  Civil  Code  shall  not 

M  In  some  contracts  a  mixed  commission,  appointed  by  the  city  and 
the  property  owners,  passes  on  plans. 

14  In  some  contracts  there  is  a  provision  that :  "The  above  restric- 
tions on  building  on  and  use  of  land  shall  remain  in  force,  any  change 
or  abrogation,  total  or  partial,  in  the  contemplated  building  ordinance 
for  the  districts  in  question  notwithstanding." 

14  It  is  the  code  of  the  entire  Empire,  in  force  January  I,  1910,  which 
is  referred  to. 

15  In   another   contract  with   other  parties   and  with   relation  to  other 
land,  the  city  agreed  that:    "In  so  far  as  the  city  is  the  owner  of  lots 
of  land  in  the  replotting  district,  it  is  understood  that  such  land  is  sub- 
ject to  all  the  provisions  of  Part  I,  to  the  same  extent  as  land  of  other 
owners:   and  the  city  hereby  expressly  agrees   for  itself   to  observe,  in 
so  far  as  the  lots  of  land  owned  by  it  are  concerned,  the  building  and 
use  restrictions  stated  in  said  Part  I. 

"In  so  far  as  the  city  of  Frankfort  sells  lots  of  land  in  the  replotting 
district  it  agrees  to  see  to  it  that,  when  such  sales  are  made,  the  said 
building  and  use  restrictions  of  Part  I  are,  as  provided  in  Part  I,  re- 
corded as  a  lien  on  these  lands,  and,  in  favor  of  the  municipality,  made 
a  limited  personal  servitude,  and  so  recorded  against  the  purchaser  in 
the  land  book. 

"These  provisions,  however,  shall  not  apply  to  buildings  erected  for 


126  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

apply.1*  The  land  owners  hereby  bind  themselves  to  cause  the  above 
mentioned  servitude  to  be  entered  in  the  land  book,  prior  to  all  mort- 
gages and  other  encumbrances,  and  the  undersigned  consent  and 
agree  to  the  entry  of  such  real  servitude. 

The  municipality  of  Frankfort-on-the-Main  will  agree,  on  the 
demand  of  the  mortgagees  of  a  first  mortgage  to  be  placed,  to  give 
it  priority  over  said  servitude  to  the  extent  that  the  mortgage  lien 
does  not  exceed  60%  of  the  value  of  the  realty  in  question.  For 
the  valuation  the  appraisal  of  the  City  Treasury  together  wkh  that 
of  the  Department  of  Buildings  or  the  Building  Police  shall  alone 
control." 


in 

All  the  parties  to  this  contract  agree  that  by  virtue  of  the  con- 
tract, throughout  the  replotting  district,  all  such  provisions  as  are  now 
in  force  with  regard  to  the  space  between  buildings  by  virtue  of  pri- 
vate law,  especially  the  provisions  of  the  Frankfort  law  of  April  i, 
1851  with  regard  to  such  space,  fencing,  and  ways  of  necessity, 
shall  be  regarded  as  revoked,  and  in  their  place  the  agreements  of 
this  contract  and,  in  so  far  as  there  are  none  such,  provisions  of 
the  building  police  ordinance  existing  at  any  time,  shall  alone  be  in 
force. 

SEC.  8.  With  the  exception  of  the  cost  of  surveys,  which  remain 
wholly  the  obligation  of  the  municipality  of  Frankfort-on-the-Main, 
all  the  costs  arising  out  of  the  making  and  execution  of  this  contract, 
including  the  cost  of  conveyance  as  well  as  that  of  the  stamp  dues, 

monumental  and  public  purposes  and  which  belong  to  the  city  or  other 
public  corporations  (e.g.,  churches,  schools  and  the  like)  so  long  as 
these  buildings  remain  the  property  of  these  corporations,  or  devoted 
to  such  public  purposes,  or  retain  their  monumental  character.  As  soon 
as  any  of  these  prerequisites  cease  to  exist,  the  provisions  of  the  two 
previous  paragraphs  apply  to  the  lot  in  question  with  full  force  and 
vigor. 

"The  city  will,  so  far  as  possible,  see  to  it  that  the  purpose  sought 
to  be  attained  by  said  sec.  (7)  shall  not  be  jeopardised  by  the  method 
of  building  on  or  use  of  the  neighboring  districts.  This  provision  applies 
especially  to  [here  follows  a  description  of  certain  neighboring  dis- 
tricts], for  which,  when  they  are  opened  for  building,  regulations  similar 
to  those  stated  above  (pars.  I.  II,  III)  shall  be  establi-1 

**  Sec.  IOQI  of  the  Imperial  Code  provides  that  the  presumption  in 
cases  of  doubt  shall  be  in  favor  of  the  person  entitled  to  the  servitude. 

In  some  case-  tlur<  are  provisions  Iiy  which  property  owners  give 
certain  city  officials  power  of  attorney  to  carry  out  and  complete  the 
contract  by  designating,  describing  and  bounding  lots  of  land,  executing 
and  recording  further  conveyances,  etc. 

"A  |>r<>vi>i<>n  not  inserted  in  the  usual  contract.  It  illustrates  the 
possibility  of  varying  the  form  here  given  to  suit  special  circumstances. 


EXCESS  CONDEMNATION,  ETC.  IN  EUROPE  127 

shall  be  borne  by  the  parties  to  this  contract  in  the  proportions  of 
the  lots  thrown  into  the  replotting  by  them  to  each  other  (comp. 
sec.  i). 

[Here  follow  provisions  exempting  the  contracting  parties  from 
transfer  and  other  taxes,  etc.] 

SEC.  9.  The  above  contract  shall  be  in  force  upon  the  conclu- 
sion of  the  contract  with  regard  to  the  construction  of  streets  within 
the  replotting  district  and  permission  to  build  on  land  abutting  on 
them,  mentioned  in  sec.  5. 

Dated,  etc. 


CHAPTER   III 

EXCESS  AND  ZONE  CONDEMNATION  AND  RE- 
PLOTTING  IN  THE  UNITED  STATES  ' 

Revival  of  Excess  Condemnation  in  the  United  States. 
— Excess  condemnation,  practiced  with  success  under  the  New 
York  statute  passed  in  1812,  virtually  ceased  to  be  employed  in 
this  country  after  that  statute  was  held  to  be  unconstitutional 
in  1834  and  did  not  again  appear  until  revived  in  Ohio  and 
Massachusetts  seventy  years  later.2 

In  1903  the  Massachusetts  legislature  appointed  a  commit- 
tee to  study  foreign  law  and  practice  on  this  subject.  Late  in 
that  year  the  committee  made  a  report  8  recommending  the 
passage  of  a  law  authorizing  the  condemnation  of  remnants 
and  of  enough  neighboring  land  to  form,  by  union  with  them, 
suitable  building  lots  for  sale  and  private  development.  The 
legislature  at  that  time,  however,  was  unwilling  to  pass  so 
broad  a  statute,  and  enacted  a  law  4  merely  allowing  the  con- 
demnation of  the  remnant  itself  when  too  small  for  independent 
development,  and  its  elimination  by  resale  to  the  owners  of 
adjacent  property,  if  they  chose  to  purchase  it.  This  statute 
proved  to  be  of  little  or  no  value,  and  a  later  legislature,  in  its 

1  For  reference  to  the  various  constitutional  and  statutory  provisions 
relating  to  excess  condemnation,  see  Tables  of  Statutes.  The  text  of  the 
most  important  constitutional  and  statutory  provisions  is  given  in  note 
B..  p.  148  ff. 

'See  p.  70.  A  Pennsylvania  Statute  was  passed  April  14,  1868  (P. 
L.  1087,  sec.  13),  authorizing  the  Fairmount  Park  Commission  of 
Philadelphia  to  condemn  and  sell  remnants ;  but  the  only  case  where 
this  was  done  seems  to  have  been  one  occurring  a  few  years  ago ;  see 
Cushman.  Excess  Condemnation  (H>I~),  p.  61.  A  New  Jersey  Statute 
(1870.  ch.  117)  which  authorized  Newark  to  replot  a  small  portion  of 
it*  .tn.i.  should  also  be  noted  in  this  connection.  It  is  reprinted  <>n  p  i.yj. 

'Mass.  Hints?  J)in-utncnts,  1004,  Nos.  288,  1096.  See  also  final  report 
of  tin-  Joint  Hoard  on  Metropolitan  Improvements,  1911. 

•1904,  ch.  443- 

128 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  129 

desire  to  authorize  the  taking  by  eminent  domain  of  the  neigh- 
boring land,  as  the  committee  of  1903  had  suggested,  asked  the 
opinion  of  the  Judges  of  the  Supreme  Court  of  the  state  as  to 
the  validity  of  such  a  law,  and  received  the  reply  5  that  in  their 
judgment  the  existing  statute  of  1904  was  legal,  but  that  the 
proposed  measure  would  be  unconstitutional.  Whereupon,  in 
1911,  the  legislature  amended  the  state  constitution  to  permit 
the  passage  of  such  a  law.6  A  number  of  statutes  and  amend- 
ments of  state  constitutions  authorizing  excess  condemnation 
for  the  purpose  of  eliminating  remnants  have  been  passed  in 
this  country  since  the  enactment  of  the  Massachusetts  statute 
of  1904,  all  of  which  permit  the  condemnation  of  neighboring 
land  to  that  end.  The  only  other  measure  in  this  country  for 
this  purpose  which  does  not  allow  adjacent  land  to  be  so  taken 
is  the  New  York  statute  of  1812,  which,  however,  is  broader 
than  the  Massachusetts  statute  of  1904  in  that  it  does  not  place 
any  limit  on  the  size  of  the  remnant  that  may  be  condemned. 

Purposes  of  Taking. — The  Ohio  statute,  passed  in  1904,* 
a  few  weeks  before  the  enactment  of  the  Massachusetts  law,8 
was  the  result  of  a  suggestion  of  the  commission  that  recom- 
mended the  creation  of  a  civic  center  for  Cleveland,  but  was 
passed  as  an  amendment  to  Ohio's  well  known  municipal  code 
of  1902  and  applies  to  all  the  cities  of  the  state.  The  Ohio 
provision  authorizes  Ohio  cities  to  condemn  excess  land  to 
protect  certain  classes  of  improvements  and  preserve  their 
"view,  appearance,  light,  air  and  usefulness." 

A  purpose  expressed  in  the  statute  of  one  state 9  is  the 
proper  plotting  of  the  excess  land  in  connection  with  the  main 
improvement.  The  statutes  of  one  state  10  authorize  condem- 
nation, and  excess  condemnation,  as  an  aid  in  the  construction 
of  houses  to  relieve  congestion.  Very  evidently  the  purposes 
of  these  various  statutes  are  not  in  all  cases  mutually  exclusive. 

6  Opinions  of  Justices,  204  Mass.  607,  616   (1910). 

'Mass.   Constitution,  Art.   X,   Part,    i,  as   added  to  by  Art.  XXXIX 
of  amendments. 

7  Now  General  Code  of  Ohio,   1910,  sec.  3677,  par.   12 

"The    Ohio    Statute   was    approved   by   the    Governor   April   25;   the 
Massachusetts   Statute,  June  8. 

'Virginia;   and,   less  clearly,  in   several   other   states. 
10  Wisconsin. 


130          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

None  of  the  statutes  or  constitutional  amendments  in  this 
country  expressly  authorize  condemnation  for  the  sake  of  mak- 
ing a  profit.  All  of  them,  however,  provide  that  the  excess 
property  may  be  sold.  Evidently,  therefore,  the  transaction 
may  result  in  a  profit.  In  some  cases  it  is  provided  that  the 
sale  may  be  "with,"  in  some  cases  "with  or  without"  proper 
restrictions  to  secure  the  accomplishment  of  the  aim  of  the 
law;  in  others  there  is  no  provision  for  the  imposition  of  re- 
strictions. It  may  be  asked  whether  the  result  of  a  taking 
under  a  statute  in  which  there  is  no  provision  for  restrictions 
on  the  sale  can  be  to  the  advantage  of  a  city  or  other  public 
body  in  any  other  way  except  financially.  To  this  question 
there  are  two  answers.  The  right  of  a  city,  with  the  authority 
of  the  legislature,  to  dispose  of  an  absolute  or  partial  interest 
in  any  real  estate  of  which  it  has  rightfully  obtained  the  title 
would  seem  to  be  clear,  and  even  if  the  title  were  not  limited 
when  transferred,  the  city,  by  combining  remnants  with  the 
adjoining  land,  or  otherwise  replotting  it,  achieves  a  result 
which  is  for  the  public  benefit  and  which,  when  once  obtained, 
will  in  all  probability  endure  without  any  legal  restrictions  to 
safeguard  it.  The  provisions  for  imposing  restrictions  on  land 
resold  would  not  seem,  therefore,  essential  to  the  validity  of  an 
excess  condemnation  statute. 

Excess  condemnation  provisions  differ  in  other  respects  be- 
sides that  of  expressed  purpose.  Thus  under  the  Ohio  statute  u 
the  improvement  in  connection  with  which  the  power  may  be 
employed  is  limited  to  the  establishment  of  park  and  other 
spaces  around  public  buildings,  while  under  other  provisions  it 
may  be  exercised  in  aid  of  parks  of  all  sorts;  12  including  play- 
grounds; 13  streets  and  squares; 14  sites  for  public  buildings; IB 
or  any  public  work.16  In  the  Ohio  statute  and  some  others  the 
power  is  given  to  municipalities,  while  under  other  enactments 

u  See  Tables  of  Statutes. 

a  Pennsylvania,   Massachusetts    (1904),   and  others. 

u  Wisconsin    (Constitution),   Oregon  and  others. 

"In  most  of  the  provisions. 

" Connecticut,  Wisconsin   (Constitution);  see  also  Maryland. 

"Ohio    (Constitution),  Virginia. 


EXCESS  CONDEMNATION  ETC.  IN  THE  u.  s.        131 

it  is  either  extended  also  to  towns,17  and  the  state,18  or  limited 
to  certain  cities  or  classes  of  cities;  in  the  Ohio  statute  and 
some  others  it  is  provided  that  any  land  needed  for  the  pur- 
poses for  which  the  power  may  be  exercised  can  be  taken,  while 
in  some  other  provisions  land  only  within  two  hundred  19  or 
three  hundred  feet  of  the  main  improvement,20  or  land  suffi- 
cient to  form  suitable  building  lots,21  or  sites,22  can  be  so  con 
demned. 

Constitutional  Amendments. — From  the  first  there  was  a 
general  fear  that  a  statutory  power  of  condemnation  would  be 
held  by  the  courts  to  be  a  taking  of  property  for  a  use  that  was 
not  public  and  therefore  that  the  statutes  would  be  held  to  be 
invalid  as  contrary  to  the  constitutions  of  the  various  states 
and  of  the  United  States.  The  advocates  of  excess  condem- 
nation observed  that  as  a  rule  the  state  constitutions  were  more 
strictly  construed  than  the  Constitution  of  the  United  States.23 
They  therefore  advocated  and  secured  amendments  of  excess 
condemnation  to  the  constitutions  of  several  states,  the  first 
amendment  being  that  of  the  constitution  of  Massachusetts  in 
1911  already  referred  to.  Two  of  these  amendments — those  in 
Ohio  and  Wisconsin — are  self  executing;  under  the  Massa- 
chusetts amendment  the  executory  act  in  each  case  specifies  the 
lands  to  be  taken  in  excess;  and  in  other  states  which  have 
amendments  of  excess  condemnation — New  York  and  Rhode 
Island — the  legislature  may  pass  general  laws  authorizing  such 
condemnation.  A  number  of  laws  have  been  passed  under  the 
amendments  of  the  constitutions  of  Massachusetts,  New  York 
and  Rhode  Island. 

Owners'  Right  of  Repurchase. — There  is  a  feeling  on 
the  part  of  some  that  the  owner  .of  the  land  condemned  in 
excess  should  be  given  the  first  right  to  repurchase  it,  and 

17 Massachusetts   (Constitution),  Rhode  Island  and  others. 

18 Wisconsin   (Constitution),  Virginia,  and  others. 

19  Pennsylvania,   Oregon. 

J0  Wisconsin. 

21  Massachusetts    (  Constitution) . 

"New  York  and  Rhode  Island   (Constitutions). 

33  See  p.  22. 


132  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

evidently  the  hostility  of  the  Pennsylvania  court  to  the  statute 
of  that  state  was  partly  due  to  the  absence  of  such  a  provision. 
Many  foreign  laws  give  the  former  owner  this  right,24  but  the 
only  provisions  in  this  country  of  this  sort  are  those  of  Massa- 
chusetts and  Rhode  Island. 

Taking  on  Security  of  Excess  Lands. — In  Ohio  the 
constitutional  amendment  provides  that  a  bonded  indebted- 
ness in  payment  for  the  land  taken  may  be  created,  but  that  it 
shall  be  a  claim  only  against  the  property  acquired  for  the 
improvement  and  the  excess,  and  not  against  the  municipality 
or  included  in  the  debt  limit.  This  is  the  use  of  a  well  known 
device,  more  fully  discussed  elsewhere,25  to  avoid  the  effect 
of  debt  limits  which  often  unduly  hamper  municipal  growth. 
There  is,  however,  an  important  difference  between  an  improve- 
ment of  the  sort  for  which  excess  condemnation  is  useful,  and 
such  transactions  as  the  construction  or  acquisition  of  public 
utilities,  to  which  provisions  such  as  this  usually  apply.  Sound 
practice  requires  that  the  utility  should  be  self-supporting,  and 
therefore  an  adequate  security  for  the  indebtedness  incurred, 
while  this  is  by  no  means  necessarily  true  of  many  improve- 
ments, such  as  thoroughfares  and  parks,  in  connection  with 
which,  nevertheless,  excess  condemnation  would  often  be  most 
useful. 

Constitutionality  of  Excess  Condemnation. — The  ques- 
tion of  the  constitutionality  of  excess  condemnation  in  this 
country  is  the  question  whether  or  not  such  condemnation  can 
fairly  be  said,  on  principle  and  on  the  authority  of  the  legal 
decisions  on  the  subject,  to  be  for  a  public  use.  Nowhere  in 
the  constitutions  is  such  a  criterion  expressly  set  up.  They 
merely  provide  that  property  shall  be  taken  for  a  public  use 
only  on  payment  of  just  compensation,  or  by  due  process  of 
law.  The  prohibition  of  any  taking  for  a  private  use  is  deduced 
from  these  provisions,  and  is  sustained  by  all  the  cases  on  the 
subject. 

The  expressed  purposes  for  which  excess  condemnation  is 
authorized  in  this  country — the  elimination  of  remnants,  the 

"*Sec  also  p.  67,  note  10. 
"  See  p.  362. 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  133 

plotting  of  the  land  adjacent  to  the  main  improvement,  the 
protection  of  its  light  and  air,  the  enhancement  of  its  attrac- 
tiveness— are  all  purposes  which,  whatever  may  have  been  the 
case  a  few  decades  ago,  are  now  generally  recognized  by  the 
courts  and  the  public  to  be  in  the  public  interest.  The  decisions 
directly  upon  excels  condemnation,  however,  are  generally  ad- 
verse. These  decisions,  few  in  number  and  all  in  state  courts, 
do  not,  in  the  main,  take  up  the  aspects  of  the  provisions  in 
which  they  differ,  but  consider  the  general  theory  underlying 
them  all.  They  may  be  divided  into  the  older  decisions  ren- 
dered between  1824  and  1863,  interpreting  the  statutes  first 
passed  in  this  country  on  this  subject,  and  the  modern  deci- 
sions made  after  excess  condemnation  had  been  reintroduced 
here  in  1904. 

The  earlier  cases  consist  of  a  decision  in  South  Carolina,28 
and  a  case,  with  the  cases  in  accord  with  it,  in  New  York. 
The  South  Carolina  case,  decided  in  1824,  interprets  a  little 
known  South  Carolina  statute  which  became  a  law  in  1817;  27 
the  New  York  case  28  passes  on  the  well  known  statute  of  that 
state,  enacted  in  i8i2.29  The  purpose  stated  in  both  these 
statutes  is  the  elimination  of  remnants. 

In  the  opinion  of  the  judges  in  these  earlier  cases  all  excess 
condemnation  is  unconstitutional  as  a  compulsory  taking  of 
private  property  for  a  use  which  is  not  public.  The  authority 
of  these  cases,  however,  is  weakened  by  the  fact  that  in  each 
case  they  hold  that  the  statute  which  they  are  interpreting 
authorizes  only  an  excess  taking  with  the  consent  of  the  prop- 
erty owner;  which  is  not  condemnation  but  purchase.  The 
statements  with  regard  to  excess  condemnation  are  therefore 
dicta  not  necessary  to  the  decision  of  the  case,  of  little  force 
in  subsequent  cases.  If  the  taking  is  really  in  excess,  it  would 
seem  that  the  municipality,  existing  as  it  does  for  the  benefit  of 


"  Dunn  v.  City  Council  of  Charleston,  16  South  Carolina  Law  Re- 
ports (sometimes  cited  as  Harper's  Law  Reports),  p.  189. 

"7  Statutes,  136. 

"In  matter  of  Albany  Street,  II  Wendell  CN.  Y.)  149  (1834);  see 
also  Embury  v.  Conner,  3  N.  Y.  5,11  (1850),  Bennett  v.  Boyle,  40  Bar- 
bour  (N.  Y.)  551  (1863). 

28  Laws   of   New   York,   1812,  ch.   174. 


134  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

its  public,  could  not  acquire  it  even  by  purchase ;  but  the  courts, 
whose  real  objection  to  excess  condemnation  seems  to  have 
been  the  supposed  injustice,  or  in  any  event  hardship,  to  the 
owner  of  excess  condemnation,  have  uniformly  supported 
excess  acquisition  to  which  he  has  consented,  although  in  both 
cases  he  receives  full  compensation;  nor  have  they  thought 
it  necessary  to  inquire  whether  an  excess  purchase  was  for 
the  benefit  of  the  municipality  at  whose  expense  it  was 
made.30 

Nowhere  in  the  earlier  cases  with  regard  to  excess  condem- 
nation, either  in  the  arguments  of  counsel  or  in  the  opinion  of 
the  judges,  is  there  shown  any  knowledge  or  appreciation  of 
the  advantages  of  excess  condemnation  to  the  community. 
Thus  the  South  Carolina  judges  state  the  issue  to  be  "Whether 
the  Legislature  has  the  constitutional  right  of  taking  the  prop- 
erty of  one  individual,  and  transferring  it  to  another,  or  to  a 
body  corporate,  for  their  own  individual  benefit  and  emolu- 
ment;" 31  and  in  one  of  the  New  York  cases  it  is  said  that  "it 
needs  no  argument  to  show  that  the  end  and  design  of  this 
section  was  not  to  take  private  property  for  the  use  of  the 
public."  32  Naturally  the  judges  decided  that  such  an  inva- 
sion of  property  rights  was  unwarranted. 

The  Modern  Court  Authorities  on  Constitutionality. 
— The  modern  decisions  on  excess  condemnation  consist  of  two 
opinions  of  the  Justices  of  the  Supreme  Court  of  Massachu- 

**  Embury  v.  Conner,  just  cited;  Durgan  v.  Boston,  12  Allen  (Mass.) 
223  (1866).  It  must  also  be  remembered  that,  although  it  might  be 
within  the  power  of  a  taxpayer  if  he  learned  of  the  project  seasonably, 
to  raise  the  objection  that  public  money  would  be  spent  for  an  unau- 
thorized purpose,  only  the  state  can  challenge  the  completed  transaction 
(MacQuillan,  Municipal  Corporations,  Vol.  IV,  p.  2487),  and  it  is  usually 
the  owner  of  property  unwilling  to  part  with  it  who  raises  objections  of 
this  sort.  This  is  a  logical  distinction,  not  without  possible  merit. 
Cities  should  not  be  permitted  to  obtain  land  or  do  any  act  except  for 
the  general  good ;  but  legislatures  may  well  regard  the  bestowal  of  a 
power  of  voluntary  purchase  as  expedient  for  objects  for  which  they 
would  hesitate  to  grant  the  much  more  drastic  power  of  compulsory 
acquisition. 

"Dunn  v.  Charleston,  16  South  Carolina  (sometimes  cited  as 
Harper's)  Law  Reports,  p.  189  at  p.  199  (1824). 

^Embury  v.  Conner,  3  N.  Y.  511  at  p.  516  (1850). 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  135 

setts,  already  referred  to,33  and  a  case  in  Pennsylvania.34 
Except  for  the  support  by  the  Massachusetts  judges  of  the  con- 
demnation of  remnants  too  small  for  independent  development, 
as  a  minor  incident  in  a  main  improvement — the  extent  to 
which  there  is  judicial  approval  for  excess  condemnation  in  this 
country — these  authorities  hold  excess  condemnation  to  be  un- 
constitutional, as  a  taking  of  property  for  a  private  use.  It 
should  be  noted,  however,  that  the  utterances  of  the  Massa- 
chusetts judges  are  not,  and  are  not  fully  entitled  to  the  weight 
of,  judicial  decisions;  for,  as  the  judges  themselves  say: — 35 
"in  giving  such  opinions,  the  justices  do  not  act  as  a 
court,  but  as  constitutional  advisers  of  the  other  departments 
of  the  government."  As  a  court  it  is  their  duty  to  decide  mat- 
ters actually  at  issue.  They  give  advice  only  in  accordance  with 
a  special  provision  of  the  constitution  requiring  it.36  A  mere 
statute  imposing  such  a  duty  is  invalid  as  an  attempt  to  force 
the  judiciary,  a  coordinate  branch  of  the  government,  to  per- 
form duties  that  are  not  judicial  in  their  nature.37  As  a  rule 
also  the  judges  are  more  conservative  in  rendering  opinions 
than  in  deciding  cases  in  which  actual  issues  are  at  stake,  inves- 
tigated and  presented  by  lawyers. 

Implicit  in  the  earlier  cases  is  the  theory  that  a  public  use 
is  necessarily  a  use  by  the  public;  and  that,  therefore,  a  taking 
for  use  by  a  private  person  or  corporation,  however  much  for 
the 'public  advantage,  cannot  be  sustained  in  this  country.  It 
is  on  this  theory  explicitly  stated  that  the  modern  cases  hold 
excess  condemnation  to  be  unconstitutional.  In  support  of 
this  doctrine  they  rely  upon  the  Massachusetts  case  of  Lowell 
v.  Boston  38  and  the  many  authorities  in  various  jurisdictions 
in  accord  with  it.  This  case  decided  that  il  statute  authorizing 

33  Opinion  of  Justices,  204  Mass.  607;  ib.  p.  616  (1910). 

84  Penn.  Mutual  Life  Ins.  Co.  v.  Philadelphia,  242  Perm.  St.,  Reports, 
47    (I9I3)  !    see   also   Bond   v.   Mayor   and   City   of    Baltimore,    116  Md. 
683    (1911). 

85  Opinion   of  Justices,    126   Mass.   557   at   p.  566    (1878);   in  ace.  95 
Maine  564   (1901). 

36  Mass.  Const,  ch.  Ill,  art.  II. 

37  Application  of   Senate,  10  Minn.  78  (1865). 
38 1 li   Mass.  454   (1873). 


136  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  city  of  Boston  to  borrow  money  to  lend  to  citizens  for  the 
purpose  of  reconstructing  buildings  which  had  been  destroyed 
in  the  great  fire  of  1872,  was  invalid.  The  Massachusetts  jus- 
tices say  in  this  case: — 

"The  lending  of  such  money  presumably  would  have  promoted 
building  and  the  transaction  of  business  in  the  devastated  district,  but 
the  benefit  to  the  public  would  not  have  been  direct,  but  only  inci- 
dental." 

and  they  quote  with  approval  the  statement  in  that  case  that 

"It  is  the  essential  character  of  the  direct  object  of  the  expendi- 
ture which  must  determine  its  validity,  as  justifying  a  tax,  and  not  the 
magnitude  of  the  interests  to  be  affected,  nor  the  degree  to  which  the 
general  advantage  of  the  community,  and  thus  the  public  welfare,  may 
be  ultimately  benefitted  by  their  promotion." 

This  is  also  the  theory  of  the  Pennsylvania  case  and  these 
are  the  authorities  upon  which  it  is  based. 

Effect  of  Recent  Decisions  of  Supreme  Court  of  United 
States. — The  position  taken  by  the  Massachusetts  justices  and 
the  Pennsylvania  court  is  much  weakened  by  recent  decisions 
of  the  Supreme  Court  of  the  United  States  upholding  state 
statutes  for  the  condemnation  of  land  for  a  private  use,  such  as 
irrigation  or  mining  on  private  land,39  on  the  ground  that  the 
private  advantage  may  be  so  conducive  to  public  prosperity  and 
well-being  as  to  be  a  public  use  for  which  resort  may  be  had 
to  the  power  of  eminent  domain.  This  holding  has  much  to 
be  said  in  its  favor,  and  in  comparison  the  doctrine  announced 
by  the  Massachusetts  and  Pennsylvania  judges  seems  highly 
technical.  The  commonwealth  is  composed  of  private  people, 
and  it  is  still  the  theory  of  our  law  that  the  wealth  and  property 
of  the  state  should  IK-  in  their  hands  for  development,  with 
such  aids  and  limitations  as  the  commonwealth  may  impose. 
It  would  seem  clear  to  the  layman  that  it  would  often  he  ex- 
tremely desirable  to  pass  regulative  measures  aiding  these 
private  citizens  in  this  development,  and  that  it  might  in  some 
cases  be  done  in  such  a  way  as,  far  from  injuring  the  other 

"Strioklry  v.  llinhl;iml  !'.••>•  Mining  Co.,  2OO  U.  S.  527  (1906);  Gark 
v.  Nash,  L>S  T.  S  .tf.i  (1905). 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  137 

members  of  the  community,  would  be  of  benefit  to  them ;  leav- 
ing the  question  as  to  whether  the  particular  use  was  suffi- 
ciently widespread  and  of  sufficient  general  importance  to  be 
regarded  in  law  as  public,  to  be  settled  on  its  merits  in  each 
specific  case. 

Even,  however,  if  the  narrower  and  older  conception  of  a 
public  use  be  adhered  to,  it  does  not  follow  that  excess  con- 
demnation is  unconstitutional.  Most  of  the  statutes  authorize 
the  taking  of  an  interest  in  the  excess  land,  which  is  retained  in 
public  use  and  ownership.  Thus  under  the  statute  held  invalid 
by  the  Pennsylvania  court  Philadelphia  attempted  to  take  excess 
land  to  preserve  view,  appearance,  light,  air,  etc.,  for  the  public 
in  its  use  of  a  public  park  way.  It  is  true  that  a  part  interest 
in  this  excess  land  was  to  be  subsequently  sold — the  interest 
which  would  have  been  of  no  advantage  to  the  public ;  but  it  is 
just  as  true  that  an  easement — a  part  interest  recognized  uni- 
versally as  valid  in  our  law — was  to  be  retained  in  perpetuity. 
It  is  now  recognized  that  an  easement  to  secure  light,  air  and 
view,  and  to  improve  the  appearance  of  a  public  work,  may  be 
taken  by  eminent  domain.40  The  legislature  in  this  statute 
of  excess  condemnation  authorized  the  taking  of  the  entire 
title  as  an  expedient  method  of  obtaining  such  an  easement ;  and 
it  is  established  law  that  the  legislature  is  the  judge  of  the 
extent  of  the  interest  necessary  to  be  acquired  and,  in  general, 
of 'the  means  to  be  employed  in  the  accomplishment  of  a  lawful 
object.41 

There  are  a  few  statutes  of  excess  condemnation — those 
whose  purpose  it  is  to  secure  the  elimination  of  remnants  or 
the  replotting  of  excess  land — which  do  not  contemplate,  in  so 
doing,  the  permanent  retention  by  the  public  of  any  interest  in 
this  land.  But  to  the  full  accomplishment  of  these  ends  no 
such  permanent  interest  is  necessary.  Laws  authorizing  the 
taking  of  land  for  a  limited  period  of  time  for  the  purpose  of 
doing  some  public  work,  and  its  resale  after  that  work  is  accom- 
plished, are  common  in  this  country,  and  have  repeatedly  been 
sustained  by  our  courts.  The  proper  plotting  of  land  would 

^Atty.  Gen.  v.  Williams,  174  Mass.  476  (1899)  ;  see  also  p.  173. 
"  See  p.  21. 


138  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

clearly  seem  to  be  such  a  purpose;  and  with  the  progress  of  city 
planning  in  this  country  there  is  good  reason  to  hope  that  it  will 
be  recognized.42  It  should  also  be  noted  that  temporary  use  is 
nevertheless  use,  and  that  these  uses  are,  in  excess  condemna- 
tion for  replotting,  uses  by  the  public  within  the  narrow  defini- 
tion of  that  expression. 

Taking  for  Profit. — It  has  already  been  pointed  out  that 
none  of  the  provisions  for  excess  condemnation  in  this  coun- 
try authorize  its  use  for  the  purpose  of  obtaining  financial 
profit,  although  obviously  profit  or  loss  may  be  one  of  the  re- 
sults. It  is  well  settled  in  this  country  that  a  municipality  can- 
not undertake  an  enterprise  merely  for  the  sake  of  the  resulting 
profit.  If,  therefore,  the  enterprise  in  question  be  regarded  as 
the  taking  of  the  additional  land,  and  the  purpose  of  the  taking 
be  the  profit,  the  enterprise,  so  defined,  is  unwarranted.  This 
is  the  way  in  which  the  Massachusetts  judges,  in  their  opinion 
already  cited,  regarded  the  matter.43  But,  it  is  submitted,  the 
enterprise  is  not  the  taking  of  the  additional  land ;  that  is  merely 
a  more  or  less  important  incident  in  the  main  enterprise  of  con- 
structing the  street,  civic  center,  or  other  improvement.  Any 
business  man  would  regard  the  making  of  money  in  connection 
with  a  transaction  in  order  to  pay  for  it  as  a  very  real,  if  inci- 
dental, part  of  the  enterprise;  like  the  utilization  of  a  waste  or 
by-product  in  manufacturing.  Practically,  however,  the  point 
of  view  of  the  courts  on  this  point  is  unimportant;  for  the 
taking  must  be  for  some  purpose  named  in  the  statutes,  and 
the  existence  of  some  other  reason,  such  as  probable  profit, 
however  potent,  is  in  that  case  immaterial. 

Other  Methods  of  Securing  the  Profit  for  the  Public. 
— Excess  condemnation  is  not  the  only  method  of  appropriat- 
ing for  the  public  the  increment  in  value  resulting  from  a  pub- 
lic improvement.  Up  to  the  amount  of  the  cost  of  the  im- 
provement this  may  be  done  by  the  levy  of  local  assessments, 
now  in  common  use  in  this  country  44  and  it  may  be  accom- 

*See  in  this  connection  Windsor  v.  Whitney,  95  Conn.  357  (1920), 
discussed  on  p.  36  of  this  work. 

*  Opinion  of  Justices,  204  Mass,  at  p.  610  (1910). 
**Sec  p.  363. 


EXCESS  CONDEMNATION  ETC  IN  THE  U.  S.  139 

plished  to  any  desired  extent  by  the  imposition  of  an  increment 
tax,  in  use  in  several  foreign  countries  and  often  suggested  for 
use  here.  Of  these  methods  only  excess  condemnation,  how- 
ever, controls  the  development  and  use  of  the  neighboring  land. 
By  this  control  the  community  may  also  obtain  not  only  the 
city  planning  advantages  already  referred  to,  but  others  indi- 
rectly of  benefit  to  city  property  and  the  city  treasury.  If,  for 
instance,  the  city  constructs  an  important  public  building  or 
group  of  buildings,  and  selects  a  site  suited  to  the  purpose 
where  land  values  are  low,  the  value  and  usefulness,  not  only 
of  the  neighboring  land,  but  of  the  principal  improvement,  will 
be  dependent,  to  a  considerable  extent,  upon  the  use  made  of 
this  neighboring  land,  and  the  class  of  purchasers  and  tenants 
secured  for  it.  In  a  new  development,  control  on  a  large  scale 
is  almost  sure,  by  controlling  initial  use,  to  raise  values,  while 
neglect  of  this  precaution  is  equally  likely  permanently  to  de- 
press them.  In  such  cases,  therefore,  excess  condemnation 
safeguards  the  usefulness  and  value  of  the  main  improvement. 
Probable  Attitude  of  United  States  Courts. — The  legal 
cases  on  excess  condemnation  in  this  country  have  so  far  all 
arisen  in  state  courts,  on  state  statutes,  passed  under  state 
constitutions  not  amended  to  authorize  excess  condemnation. 
The  question  of  the  validity  of  these  statutes  and  of  the 
amendments  to  state  constitutions  has  not  yet  arisen  in  the  fed- 
eral courts.  In  all  probability,  however,  a  state  which  has  sus- 
tained a  statute  of  excess  condemnation  in  its  courts  or  amended 
its  constitution  to  authorize  it,  has  nothing  to  fear  in  the 
United  States  Courts,  for  two  reasons: — the  Supreme  Court 
of  the  United  States  has  already  accepted  the  broad  definition 
of  a  public  use ;  and  it  has  never  yet  held  a  use  to  be  private 
which  the  state  legislature  and  constitution,  as  interpreted  by 
the  state  courts,  has  held  to  be  public;  and  its  decisions  show 
that  it  is  very  loath  to  do  so.45 

Zone  Condemnation. — Zone  condemnation  is,  as  has  al- 
ready been  stated,  the  condemnation  of  a  tract  of  land  of  a 
particular  character  for  replanning  in  a  particular  way.     The 
expression  is,  therefore,  one  more  of  city  planning  than  of 
48  See  p.  22. 


140  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

law.  In  the  sense  in  which  the  expression  is  here  used,  there 
has  been  no  zone  condemnation  in  the  United  States.  Unques- 
tionably, there  are  districts  in  cities  in  the  United  States  where 
zone  condemnation  could  be  most  advantageously  employed, 
and  the  only  question  remaining  for  consideration  is  whether  it 
would  be  constitutional. 

Similarity  of  Drainage  Schemes ;  the  Boston  Back  Bay 
Cases. — Unlike  excess  condemnation,  which  is  incidental  to 
another,  main  condemnation,  zone  condemnation  is  complete 
and  independent,  and  may  be  defined  as  ordinary  condemnation 
for  a  specific  purpose.  The  difficulty  of  introducing  zone  con- 
demnation in  this  country  is  that  of  convincing  the  courts  of 
the  importance  of  the  proper  planning  and  plotting  of  slum 
areas  for  the  promotion  of  the  public  health  and  safety,  and 
of  the  advantage  of  carrying  out  this  planning,  plotting  and 
reconstruction  as  a  single  enterprise.  In  these  days  when  city 
planning  is  so  rapidly  winning  recognition,  this  should  not  be 
difficult.  Statutes  for  the  condemnation,  replanning,  replotting, 
reconstruction  and  resale  of  a  tract  for  a  purpose  recognized 
as  public,  such  as  securing  proper  drainage,  are  not  uncommon, 
and  have  been  sustained  by  our  courts.  Thus  Massachusetts  in 
1867  46  authorized  the  city  of  Boston,  for  the  purpose  of  rais- 
ing the  level  of  part  of  the  Back  Bay  district  so  that  it  might 
be  properly  drained,  to  condemn  the  absolute  and  entire  title  to 
an  extensive  tract  of  land,  traversed  by  streets,  upon  which 
there  were,  in  some  cases,  buildings  and  other  improvements; 
to  fill  it  in,  and  to  resell  it  for  private  uses.  This  the  city  did 
with  profit  and  success;  and  the  statute  under  which  it  was  done 
was  held  valid  by  the  Supreme  Court  of  Massachusetts  and  the 
Supreme  Court  of  the  United  States.47 

In  sustaining  this  statute,  the  Supreme  Court  of  the  United 
States  said : — 

"In  determining  whether  the  legislature,  in  a  particular  enactment, 
has  passed  the  limits  of  its  constitutional  authority,  every  reasonable 
presumption  must  be  indulged  in  favor  of  the  validity  of  such  cnact- 

**Ch.  .308;  similar  statutes  are  Mass.  Laws  1008,  ch.  117  and  1910. 
ch.  606. 

"Dingley  v.  Boston,  100  Mass.  544  (1868) ;  Sweet  v.  Rechel,  159  U.  S. 
iSo  (1895). 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  141 

ment.  It  must  be  regarded  as  valid,  unless  it  can  be  clearly  shown 
to  be  in  conflict  with  the  constitution.  It  is  a  well-settled  rule  of 
constitutional  exposition,  that  if  a  statute  may  or  may  not  be,  accord- 
ing to  circumstances,  within  the  limits  of  legislative  authority,  the 
existence  of  the  circumstances  necessary  to  support  it  must  be  pre- 
sumed.48 .  .  . 

"In  Dingley  v.  Boston,  ...  it  was  objected,  that  as  the  act  [of 
1867]  authorized  the  city  to  first  take  the  land  and  thereby  transfer 
to  itself  the  fee  without  the  consent  of  the  owners,  and  as  the  only 
object  of  the  legislature  was  to  abate  a  nuisance,  the  act  should  only 
have  granted  power  to  occupy  the  land  until  its  object  was  effected  by 
raising  the  grade,  which  being  done,  the  land  should  have  been 
restored  to  the  owners,  applying  the  benefit  received  therefrom  in 
offset  to  the  damages.  That  objection  was  fully  met.  Conceding  it  to 
be  true  that  the  raising  of  the  grade  did  not  require  the  occupation  of 
the  land  for  a  great  length  of  time,  and  that  when  the  work  was  com- 
pleted the  nuisance  was  abated,  and  the  land  in  a  condition  to  be  occu- 
pied by  private  persons,  the  court  said:  'But  its  condition  will  be 
greatly  changed;  almost  as  much  as  raising  flats  into  upland.  The 
former  surface  will  be  deeply  buried  under  the  earth  that  will  have 
to  be  brought  upon  it,  and  the  changed  condition  is  to  be  perpetual. 
If  the  old  property  is  restored,  the  new  property  which  has  been 
annexed  to  it  must  go  with  it.  This  would  be  very  unjust  to  the  city, 
which  has  been  compelled  to  incur  the  great  expense  of  destroying  the 
nuisance,  unless  the  owner  were  required  to  make  a  reasonable  com- 
pensation, which  might  be  far  beyond  the  amount  of  the  damages  to 
which  he  would  be  entitled.  It  would  be  difficult  to  adjust  the  matter; 
and  in  many  cases  it  might  operate  harshly  upon  the  owner  to  compel 
him  to  take  and  pay  for  the  improvements.  On  the  whole,  therefore, 
the  plan  of  compelling  the  city  to  take  the  land  in  fee  simple,  and  the 
owner  to  part  with  his  whole  title  for  a  just  compensation,  would 
seem  to  be  the  most  simple  and  equitable  that  could  be  adopted ;  unless 
there  is  some  objection  on  the  ground  that  a  fee  simple  is  more  sacred 
than  an  estate  for  life  or  years,  or  than  an  easement  of  greater  or  less 
duration.  We  can  see  no  ground  for  regarding  one  of  these  titles  as 
more  sacred  than  another,  or  for  regarding  land  as  more  sacred  than 
personal  property.  ...  It  must  ...  be  left  to  the  legislature  to  de- 
cide what  quantity  of  estate  ought  to  be  taken  in  order  to  accomplish 
its  purpose,  and  do  the  most  complete  justice  to  all  parties.  .  .  .  The 
Constitution  provides  for  the  protection  of  all  private  property,  and 
it  provides  that  when  the  public  exigencies  require  that  the  property 
of  any  individual  shall  be  appropriated  to  public  uses,  he  shal!  receive 
a  reasonable  compensation  therefor.  But  it  leaves  the  legislature, 

*" Citing  Talbot  v.  Hudson,  16  Gray  (Mass.)  417,  422  (1860)  ;  Fletcher 
v.  Peck,  6  Cranch  (U.  S.),  87,  128  (1810)  ;  Sinking  Fund  Cases,  99  U.  S. 
700,  718  (1878). 


142  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

without  any  restriction,  express  or  implied,  to  decide  in  each  case  as 
it  arises,  what  constitutes  such  exigency;  and,  if  the  land  is  to  be 
taken,  what  estate  in  it  shall  pass.' " 

No  more  unqualified  and  complete  recognition  of  both  the 
principles  and  the  methods  of  zone  condemnation  is  possible 
than  that  made  in  these  decisions  of  the  conservative  and  able 
Supreme  Court  of  Massachusetts  and  of  the  Supreme  Court  of 
the  United  States. 

Replotting. — Replotting,  or  the  resubdivision  of  building 
land  under  the  police  power,  is  needed  as  much  perhaps  in  this 
country  as  abroad.  In  the  United  States  land  in  the  outskirts 
of  our  cities  is  not,  it  is  true,  divided  minutely  or  into  extremely 
narrow  strips,  as  it  is  in  some  foreign  countries ;  but  we  have, 
much  more  commonly  than  they,  the  unscientific  gridiron  sys- 
tem of  street  planning,  often  covering  vast  suburban  areas 
entirely  free  from  improvements.  Even  the  streets,  in  many 
cases,  although  on  the  map,  are  not  constructed.  The  great 
difficulty  in  introducing  a  more  sensible  street  plan  in  those 
parts  of  our  cities  is  the  subdivision  of  land  into  private  lots 
owned  by  many  different  individuals  and  adapted  to  the  pro- 
jected streets.  With  replotting  these  lot  lines  could  be  read- 
justed to  new  street  lines  with  no  more  than  a  trifling  incon- 
venience or  expense.  As  soon  as  we  realize  the  cost,  in  so 
many  ways,  of  the  gridiron  plan,  we  shall  see  the  advantages 
of  replanning  and  the  difficulty  of  so  doing  without  replotting. 
Our  cities,  also,  are  less  substantially  constructed  than  foreign 
cities,  and  more  often  devastated  by  fire,  flood  or  other  dis- 
aster, and,  being  more  carelessly  planned,  are  in  greater  need  of 
replanning;  of  which  replotting  is  a  necessary  part.  Is  the  em- 
ployment of  the  police  power  for  this  purpose,  supplemented  in 
some  cases  by  the  power  of  local  assessment,  constitutional, 
or  is  replotting  only  possible  under  eminent  domain,  and  there- 
fore a  practical  impossibility? 

Replotting  under  governmental  supervision  may  be  justified 
as  a  necessary  part  of  planning  many  parts  of  our  cities,  and 
therefore  as  a  means  of  promoting  the  public  health,  safety, 
convenience  and  prosperity.  It  may  also  be  supported,  like 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  143 

the  employment  of  the  power  of  eminent  domain,  as  an  aid 
to  private  uses  of  property  most  important  to  the  general  well- 
being,  the  test  as  to  whether  eminent  domain  or  the  police  power 
should  be  resorted  to  in  any  given  case,  being  whether  it  is  rea- 
sonable. It  was  in  applying  this  test  to  decide  under  which  of 
these  powers  the  Back  Bay  Improvement  should  have  been 
undertaken  that  the  Supreme  Court  of  the  United  States 
said :  49 

"It  is  not  alleged  in  the  pleadings,  nor  was  there  any  evidence 
tending  to  show,  that  the  cost  of  raising  the  grade  would  have  been 
so  slight,  compared  with  the  real  value  of  the  property,  that  a  due 
regard  to  the  constitution  demanded  that  the  owner  should  have  been 
given  opportunity  to  raise  the  grade  at  his  own  expense,  and  retain 
the  property  in  its  improved  condition." 

Uses   of   Police    Power   Analogous   to    Replotting. — 

Freund,  in  his  admirable  book  on  the  police  power  50  states 
the  case  for  the  employment  of  the  police  power  for  a  private 
interest  that  is  also  public,  forcibly,  but  more  apologetically 
than,  in  the  light  of  recent  cases,  seems  necessary,  as  follows : — 

"While  in  general  a  person  will  not  be  compelled  to  improve  his 
land  in  a  particular  manner,  the  principle  suffers  some  modification 
where  the  improvement  (without  being  strictly  or  directly  public, 
though  perhaps  remotely  and  indirectly  so)  is  common  to  several 
adjoining  estates.  In  one  aspect  the  compulsion  is  exercised  in  favor 
of  other  persons,  and  thus  resembles  the  legislation  allowing  the  con- 
struction of  private  ways,  drains  and  ditches  across  the  lands  of 
others.  .  .  .  But  in  the  cases  to  be  now  considered  the  owner  whose 
land  is  affected  by  the  exercise  of  the  power  shares  in  the  benefit  of 
the  improvement  to  which  he  is  made  to  contribute,  and  because  he 
does  so  share  he  may  be  compelled  to  bear  a  part  of  the  cost  of  the 
joint  enterprise." 

As  other  instances  of  compulsory  joint  improvement 
Freund  cites  51  party  walls  and  divisions  fences. 

Analogies  to  Drainage  and  Irrigation. — A  striking  ex- 
ample of  this  use  of  the  police  power  supplemented  by  the 

*  Sweet  v.  Rechel,  159  U.  S.  380  at  393  (1895). 
80  Sec.  440. 
"Sees.  443-444. 


144  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

power  of  local  assessment  52  is  furnished  by  the  drainage  and 
irrigation  laws  in  this  country,  which,  as  Freund  says : 6a 

"provide  that  where  a  number  of  pieces  of  land  are  so  situated  that 
either  the  improvement  can  be  undertaken  only  jointly,  or  that  the 
joint  improvement  will  be  more  effective  or  more  economical  than 
individual  works,  a  stated  number  or  proportion,  usually  a  majority 
in  interest  or  area,  of  owners  may  petition  the  proper  authorities  for 
the  creation  of  a  drainage  or  irrigation  district,  which  may  include  the 
lands  of  non-consenting  owners.  After  notice  and  hearing  which  is 
constitutionally  indispensable,  if  a  proper  case  is  made  out,  the  district 
is  made  a  quasi-public  corporation,  commissioners  are  elected  or 
appointed  for  the  management  of  the  work,  and  the  expense  is 
assessed  upon  the  owners  according  to  the  benefit  received  by 
each.  ...  It  is  true  that  ordinarily  an  owner  will  not  be  forced  to 
improve  his  land  merely  to  increase  the  general  prosperity  of  the 
country ;  nor  will  one  party  be  forced  into  a  partnership  with  another, 
because  the  interests  of  both  can  be  better  served  by  joint  than  by 
individual  action.  But  lands  may  be  so  situated  toward  each  other 
as  to  create  a  mutual  dependence  and  a  natural  community.  The 
exercise  of  the  police  power  then  consists  in  applying  to  this  com- 
munity the  same  principle  of  majority  rule  which  is  recognized,  as  a 
matter  of  course,  for  local  purposes  in  larger  neighborhoods  consti- 
tuting political  subdivisions." 

There  are  drainage  laws  similar  in  principle  in  most  if  not 
all  the  civilized  countries  of  the  world. 

The  drainage  of  a  tract  of  low  lying  land  belonging  to  a 
number  of  owners,  in  order  to  make  it  useful  or  increase  its  use- 
fulness, resembles,  in  every  essential  feature,  the  replotting  of 
a  similarly  owned  tract  which  is  unavailable  because  of  faulty 
subdivision. 

The  doctrine  stated  by  Freund  now  has  the  endorsement 
of  the  Supreme  Court  of  the  United  States.  In  Fallbrook 
Irrigation  District  v.  Bradley84  that  court  in  1896,  said  with 
regard  to  the  irrigation  of  private  land  in  California: — 

"The  case  does  not  essentially  differ  from  that  of  Hagar  v.  Re- 
clamation District,  in  U.  S.  701,  where  this  court  held  that  the  power 
of  the  legislature  of  California  to  prescribe  a  system  for  reclaiming 

*  Local  assessment  is  insufficient,  because  a  measure  of  control  over 
the  land  must  be  exercised. 
**  Sec    441. 
"164  U.  S.  us  (1896). 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  145 

swamp  lands  was  not  inconsistent  with  any  provision  of  the  Federal 
Constitution.  The  power  does  not  rest  simply  upon  the  ground  that 
the  reclamation  must  be  necessary  for  the  public  health.  That  indeed 
is  one  ground  for  interposition  by  the  State,  but  not  the  only  one. 
Statutes  authorizing  drainage  of  swamp  lands  have  frequently  been 
upheld  independently  of  any  effect  upon  the  public  health,  as  reason- 
able regulations  for  the  general  advantage  of  those  who  are  treated 
for  this  purpose  as  owners  of  a  common  property.  Head  v.  Amos- 
keag  Manufacturing  Co.,  113  U.  S.  9,  22;  Wurtz  v.  Hoagland,  114 
U.  S.  606,  611;  Cooley  on  Taxation,  617  (2d  ed.).  If  it  be  essential 
or  material  for  the  prosperity  of  the  community,  and  if  the  improve- 
ment be  one  in  which  all  the  landowners  have  to  a  certain  extent  a 
common  interest,  and  the  improvement  cannot  be  accomplished  with- 
out the  concurrence  of  all  or  nearly  all  of  such  owners  by  reason  of 
the  peculiar  natural  condition  of  the  tract  sought  to  be  reclaimed,  then 
such  reclamation  may  be  made  and  the  land  rendered  useful  to  all 
and  at  their  joint  expense.  In  such  case  the  absolute  right  of  each 
individual  owner  of  land  must  yield  to  a  certain  extent  or  be  modified 
by  corresponding  rights  on  the  part  of  other  owners  for  what  is 
declared  upon  the  whole  to  be  for  the  public  benefit. 

"Irrigation  is  not  so  different  from  the  reclamation  of  swamps  as 
to  require  the  application  of  other  and  different  principles  to  the 
case." 

In  1915,  the  Supreme  Court  of  the  United  States  reaffirmed 
the  opinion  it  gave  in  the  Fallbrook  case,  and  in  so  doing 
said : — 55 

"In  Drainage  District  No.  i  v.  Richardson  County,  86  Nebraska 
35£  .  .  .  the  Supreme  Court  of  Nebraska  said  upon  this  point:  That 
question  was  decided  by  this  Court  in  the  case  of  Neal  v.  Vansickle, 
72  Nebraska,  105.  It  was  there  said  .  .  .  "In  our  opinion,  it  is  too 
late  in  the  day  to  contend  that  irrigation  of  arid  lands,  the  straighten- 
ing and  improvement  of  water  courses,  the  building  of  levees  and 
the  draining  of  swamp  and  overflowed  lands  for  the  improvement  of 
the  health  and  comfort  of  the  community,  and  the  reclamation  of 
waste  places  and  the  promotion  of  agriculture,  are  not  all  and  every 
of  them  subjects  of  general  and  public  concern,  the  promotion 
and  regulation  of  which  are  among  the  most,  important  of  govern- 
mental powers,  duties  and  functions."  .  .  .  We  see  no  reason  at  this 
time  to  depart  from  that  opinion,  and  therefore  this  contention  must 
be  considered  foreclosed  so  far  as  this  court  is  concerned.'  .  .  . 

"We  find  no  ground  for  a  contrary  view  as  to  the  nature  of  the 
authorized  enterprise.  ...  It  has  been  held  that  it  is  not  necessary 

"O'Neill  v,  Learner,  239  U.  S.  244  (1915). 


146  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

that  the  state  power  should  rest  simply  upon  the  ground  that  the 
undertaking  is  needed  for  the  public  health ;  there  are  manifestly  other 
considerations  of  public  advantage  in  providing  a  general  plan  of 
reclamation  by  which  wet  lands  throughout  the  State  may  be  opened 
to  profitable  use.  (Fallbrook  Irrigation  District  v.  Bradley,  164  U.  S. 
112,  163.)" 

Analogies  to  Compulsory  Joint  Improvements. — Lewis 
on  Eminent  Domain 50  cites  the  decisions  rendered  and  the 
various  statutory  and  constitutional  provisions  passed  on  the 
subject  of  compulsory  joint  improvements  up  to  the  date  of 
the  publication  of  his  book,  as  based  on  eminent  domain. 
Nichols,  however,  in  the  recent  edition  of  his  work  on  eminent 
domain,  issued  in  1917,  adopts  the  view  here  maintained.  He 
says : — 

"Sec.  105.  Legislation  Aimed  to  Prevent  the  Tieing  up  of  Pro- 
ductive Property.  .  .  .  There  is  one  example  of  this  branch  of  the 
police  power  which  strongly  resembles  an  exercise  of  the  power  of 
eminent  domain,  although  it  is  held  by  the  courts  that  it  does  not 
involve  a  taking  of  property,  or  require  the  public  use  for  its  justifi- 
cation. When  property  in  which  several  persons  have  a  common 
interest  cannot  be  fully  and  beneficially  enjoyed  in  its  existing  con- 
dition and  the  parties  interested  therein  cannot  agree  upon  a  scheme 
for  the  more  advantageous  use  of  the  property,  the  law  often  pro- 
vides a  way  in  which  they  may  compel  one  another  to  submit  to  meas- 
ures necessary  to  secure  its  beneficial  enjoyment,  making  just  com- 
pensation to  any  of  the  proprietors  whose  control  of  the  property  or 
interest  therein  has  been  modified  by  the  new  arrangement,  which 
compensation  those  of  the  proprietors  who  are  benefitted  are  obliged 
to  pay.  Familiar  examples  of  this  class  of  legislation  are  the  statutes 
providing  for  the  repair  of  houses,  mills  and  wharves  owned  by 
several  parties,  the  employment  of  ships  held  on  shares,  the  partition 
of  land  held  in  common,  the  construction  and  maintenance  of  party 
walls,  the  government  of  the  proprietors  of  private  ways  and  bridges 
and  common  fields  and  the  drainage  of  swamps  and  meadows. 

"The  exercise  of  this  power  in  most  instances  is  upon  property 
held  in  common,  but  the  principle  is  the  same  if  applied  to  a  tract 
of  land  affected  by  common  necessities  and  interests,  although  divided 
into  parcels  held  by  individual  owners  in  severally.  When  a  tract 
of  such  land  is  divided  into  several  parcels  held  l>y  different  owners 
and  a  general  improvement  of  the  whole  cannot  be  effected  without 
the  harmonious  co-operation  of  all  the  owners,  the  common  nee- 

"Third  edition,  1009,  Sec.  283  and  ff. 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  147 

is  met  and  the  common  interest  secured  by  the  intervention  of  the 
state,  and  the  individual  rights  of  each  owner  are  subjected  to  such 
modifications  as  seem  most  adapted  to  secure  the  best  advantage  of 
all.  Those  who  are  damaged  are  compensated  by  those  who  are 
benefitted.  Land  is  actually  taken  and  pecuniary  impositions  are 
levied  although  the  use  is  not  public,  but  neither  the  power  of  emi- 
nent domain  nor  the  power  of  taxation  is  exercised.  No  land  outside 
the  tract  affected  by  the  common  interest  is  taken  or  assessed,  and 
it  is  settled  that  the  compulsory  improvement  of  the  tract  in  the  man- 
ner described  is  a  valid  exercise  of  the  police  power." ' 

The  more  or  less  technical  arguments  for  and  against 
the  constitutionality  of  excess  condemnation,  zone  condemna- 
tion and  replotting  have  been  considered  at  some  length;  and 
properly,  too,  for  the  people  of  the  United  States  is  a  legalistic 
people,  and  these  are  the  terms  in  which  it  thinks.  The  funda- 
mental question,  however,  is  the  need  of  these  powers  in  this 
country.  In  the  decision  foreign  usage  and  experience,  invalu- 
able as  they  may  be,  are  not  conclusive.  The  question  is  one 
of  the  necessity  and  effectiveness  of  these  remedies  for  us,  and 
it  is  the  people  of  this  country  who  must  decide  it.  In  condenu 
nation  proceedings  public  use  is  only  a  more  technical  name  for 
public  benefit;  and  in  a  democracy  public  policy  is  determined 
by  public  opinion  which  the  courts  sooner  or  later  ratify  and 
announce ;  for,  as  the  Supreme  Court  of  the  United  States,  in  a 
passage  widely  quoted  with  approval,  says  of  the  police  power 
— and  it  is  equally  true  of  the  power  of  eminent  domain — it 

17  See  in  this  connection  also  Ruling  Case  Law,  Vol.  10  Eminent 
Domain,  sees.  4,  47-53. 

In  the  case  of  O'Neill  v.  Learner,  239  U.  S.  244  (1915),  it  should  be 
noticed  that  resort  was  had  to  the  power  of  eminent  domain  because  the 
lands  to  be  condemned  "did  not  receive  the  flood  waters  of  the  creek 
but  were  situated  .  .  outside  the  drainage  district,"  and  thus  were  not 
affected  by  the  common  interests  and  necessities,  but  condemned  for  the 
benefit  of  the  tracts  which  were  so  affected  in  common.  In  the  case  of 
Houck  v.  Little  River  Drainage  District,  239  U.  S.  254  (1915),  the  court 
stated  that  the  levies  for  the  improvement  were  local  assessments.  This 
is  perhaps  due  to  the  fact  that  the  improvement  was  carried  on  by  a 
quasi-public  corporation,  on  a  large  scale ;  and  would  not  necessarily 
be  true  of  replotting.  If,  however,  the  same  results  are  obtained  in  this 
country  by  the  same  methods  as  abroad  or  those  which  are  equally  ad- 
vantageous— and  this  the  decisions  would  seem  to  allow — the  names  of 
the  powers  under  which,  in  the  opinion  of  the  courts,  this  is  accom- 
plished, will,  except  to  legal  theorists,  be  immaterial. 


148 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


Powers  of 
the  legis- 
lature rela- 
tive to  the 
taking  of 
land,  etc., 
for  widen- 
ing or  relo- 
cating high- 
ways, etc. 


Acquisi- 
tion of 
lands  by 
the  state. 


"extends  to  all  the  great  public  needs — It  may  be  put  forth  in  aid  of 
what  is  sanctioned  by  usage,  or  held  by  the  prevailing  morality  or 
strong  and  preponderant  opinion  to  be  greatly  and  immediately  nec- 
essary to  the  public  welfare."* 

Note  B 

No.   i.    MASSACHUSETTS,   AMENDMENT  TO   CONSTITUTION* 
ARTICLE  XXXIX 

Article  ten  of  part  one  of  the  Constitution  is  hereby  amended  by 
adding  to  it  the  following  words: — 

The  legislature  may  by  special  acts  for  the  purpose  of  laying  out, 
widening  or  relocating  highways  or  streets,  authorize  the  taking  in 
fee  by  the  commonwealth,  or  by  a  county,  city  or  town,  of  more  land 
and  property  than  are  needed  for  the  actual  construction  of  such  high- 
way or  street :  Provided,  however,  that  the  land  and  property  author- 
ized to  be  taken  are  specified  in  the  act  and  are  no  more  in  extent 
than  would  be  sufficient  for  suitable  building  lots  on  both  sides  of 
such  highway  or  street,  and  after  so  much  of  the  land  or  property 
has  been  appropriated  for  such  highway  or  street  as  is  needed  there- 
for, may  authorize  the  sale  of  the  remainder  for  value  with  or  with- 
out suitable  restrictions. 

No.  2.    OHIO,  AMENDMENT  TO  CONSTITUTION"* 

ART.  XVIII,  Sec.  10.  A  municipality  appropriating  or  otherwise 
acquiring  property  for  public  use  may  in  furtherance  of  such  public 
use  appropriate  or  acquire  an  excess  over  that  actually  to  be  occupied 
by  the  improvement,  and  may  sell  such  excess  with  such  restrictions  as 
shall  be  appropriate  to  preserve  the  improvement  made.  Bonds  may 
be  issued  to  supply  the  funds  in  whole  or  in  part  to  pay  for  the  excess 
property  so  appropriated  or  otherwise  acquired,  but  said  bonds  shall 
be  a  lien  only  against  the  property  so  acquired  for  the  improvement 
and  excess,  and  they  shall  not  be  a  liability  of  the  municipality  nor 
be  included  in  any  limitation  of  the  bonded  indebtedness  of  such 
municipality  prescribed  by  law. 

No.  j.    WISCONSIN,  AMENDMENT  TO  CONSTITUTION  ** 

ART.  XI,  Sec.  33.  The  State  or  any  of  its  cities  may  acquire  by 
gift,  purchase,  or  condemnation  lands  for  establishing,  laying  out, 
widening,  enlarging,  extending,  and  maintaining  memorial  grounds, 

"Noble  State  Bank  v.  Haskell,  219  U.  S.  104  at  m   (19"). 
"Adopted  ton. 
"Adopted  1912. 
"Adopted  1912. 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  149 

streets,  squares,  parkways,  boulevards,  parks,  playgrounds,  sites  for 
public  buildings,  and  reservations  in  and  about  and  along  and  leading 
to  any  or  all  of  the  same ;  and  after  the  establishment,  layout,  and 
completion  of  such  improvements,  may  convey  any  such  real  estate 
thus  acquired  and  not  necessary  for  such  improvements,  with  reserva- 
tions concerning  the  future  use  and  occupation  of  such  real  estate, 
so  as  to  protect  such  public  works  and  improvements,  and  their  envi- 
rons, and  to  preserve  the  view,  appearance,  light,  air,  and  usefulness 
of  such  public  works. 

No.  4.    NEW  YORK,  AMENDMENT  TO  CONSTITUTION™ 

ART.  I,  Sec.  7.     The  legislature  may  authorize  cities  to  take  more    Excess 
land  and  property  than  is  needed  for  actual  construction  in  the  laying   tion.en 
out,  widening,  extending  or  re-locating  parks,  public  places,  highways 
or  streets;  provided,  however,  that  the  additional  land  and  property 
so  authorized  to  be  taken  shall  be  no  more  than  sufficient  to  form 
suitable  building  sites  abutting  on  such  park,  public  place,  highway 
or  street.    After  so  much  of  the  land  and  property  has  been  appro- 
priated for  such  park,  public  place,  highway  or  street  as  is  needed 
therefor,  the  remainder  may  be  sold  or  leased. 

No.  5.    RHODE  ISLAND,  AMENDMENT  TO  CONSTITUTION  M 

ART.  XVII,  Sec.  I.  The  general  assembly  may  authorize  the 
acquiring  or  taking  in  fee  by  the  state,  or  by  any  cities  or  towns,  of 
more  land  and  property  than  is  needed  for  actual  construction  in  the 
establishing,  laying  out,  widening,  extending  or  relocating  of  public 
highways,  streets,  places,  parks  and  parkways :  Provided,  however, 
that  the  additional  land  and  property  so  authorized  to  be  acquired  or 
taken  shall  be  no  more  in  extent  than  would  be  sufficient  to  form 
suitable  building  sites  abutting  on  such  public  highway,  street,  place, 
park  or  parkways.  After  so  much  of  the  land  and  property  has  been 
appropriated  for  such  public  highway,  street,  place,  park  or  parkway 
as  is  needed  therefor,  the  remainder  may  be  held  and  improved  for 
any  public  purpose  or  purposes,  or  may  be  sold  or  leased  for  value 
with  or  without  suitable  restrictions,  and  in  case  of  any  such  sale  or 
lease  the  person  or  persons  from  whom  such  remainder  was  taken 
shall  have  the  first  right  to  purchase  or  lease  the  same  upon  such 
terms  as  the  state  or  city  or  town  is  willing  to  sell  or  lease  the  .same. 

No.  6.    NEW  JERSEY  STATUTE,  1870 

Chapter  CXVII.    A  Further  Supplement  to  the  act  entitled  "An   Preamble. 
Act  to   Revise   and  Amend  the   Charter  of  the   City  of   Newark," 
approved  March  eleventh,  eighteen  hundred  and  fifty-seven. 

"Adopted  1913. 
"Adopted  1916. 


ISO  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

WHEREAS,  a  certain  portion  of  the  City  of  Newark,  formerly 
belonging  to  the  Township  of  Clinton,  and  known  as  "Clinton  Hill," 
has  been  heretofore  laid  out  with  narrow,  short  and  irregular  streets 
and  passageways,  by  private  owners  of  property  without  any  munici- 
pal authority,  and  without  reference  to  adjoining  property,  or  to 
connecting  streets,  or  to  the  public  interest  or  convenience,  which 
streets  have  been  to  some  extent  built  upon,  and  thus  the  danger  from 
fire  by  reason  of  their  narrowness  has  been  greatly  increased;  and 
whereas,  it  is  very  desirable  to  continue  the  policy  which  has  been 
pursued  for  many  years  by  the  city  authorities,  of  laying  out  streets 
and  avenues  upon  a  general  plan,  which  shall  secure,  as  far  as  pos- 
sible, uniformity,  proper  width,  good  ventilation,  and  reasonable 
security  against  fire;  and  whereas  the  commissioners  appointed  by 
the  common  council  for  that  purpose,  now  engaged  in  the  examina- 
tion of  the  streets  in  the  section  of  the  city  above  described,  find  it 
impracticable  under  existing  laws  to  remedy  the  difficulties,  or  to 
secure  the  desirable  results  above  mentioned;  therefore 

Commit-  i.     BE  IT  ENACTED  by  the  Senate  and  General  Assembly  of  the 

authorized    ^tate  °f  Ar^ztr  Jersey,  That  the  commissioners  appointed  by  the  corn- 
to  purchase   mon  council  of  the  city  of  Newark,  pursuant  to  an  act  of  the  legisla- 
scribed  °     ture  °f  tms  State,  approved  April  first,  eighteen  hundred  and  sixty- 
land*,  etc.     nine,  and  entitled  "A  supplement  to  the  act  authorizing  the  appoint- 
ment of  commissioners  to  lay  out  streets,  avenues  and  squares  in  the 
city  of  Newark,"  approved  March  twentieth,  eighteen  hundred  and 
fifty-seven,  are  hereby  appointed  commissioners  with  full  power  and 
authority  to  purchase  at  their  discretion,  all  or  any  part  of  the  lands, 
real  estate,  buildings  and  improvements  within  the  limits  described 
as  follows,  to  wit: 

[Here  follows  a  description  of  the  tract.] 

and  to  make  such  compensation  therefor  to  the  owner  or  owners 
thereof,  as  they  may  deem  reasonable,  and  to  receive  from  the  said 
owner  or  owners  conveyances  of  the  same  to  the  city  of  Newark;  in 
case  no  agreement  for  such  purchase  can  be  made  with  said  owners, 
the  said  commissioners  shall  thereupon  proceed  to*  (take  said  tract 
by  eminent  domain). 

*2.     Authority  to  issue  bonds  for  payment  of  land,  etc. 

*3.     Commissioners  may  vacate  and  lay  out  streets  and  highways. 

*4.  Commissioners  shall  lay  out  the  lands  in  lots  and  sell  the 
same. 

*5.  If  proceeds  are  insufficient  the  deficit  to  be  assessed  on  adja- 
cent land. 

*6.     Surplus  to  be  distributed  to  owners  of  the  lands. 

*7.     Commissioners  shall  take  oath,  etc. 

8.     And  be  it  enacted.  That  this  act  shall  take  effect  immediately. 

*  Summarized. 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  151 

No.  7.    OHIO  STATUTE,  1904" 

SEC.  3677.     Municipal   corporations  shall  have  special  power  to   Appropria- 
appropriate,  enter  upon  and  hold,  real  estate  within  their  corporate    property, 
limits.     Such  power  shall  be  exercised  for  the  purposes,  and  in  the  - 
manner  provided  in  this  chapter. 

12.  For  establishing  esplanades,  boulevards,  parkways,  park 
grounds,  and  public  reservations  in,  around  and  leading  to  public 
buildings  and  for  the  purpose  of  reselling  such  land  with  reservations 
in  the  deeds  of  such  resale  as  to  the  future  use  of  such  lands,  so  as 
to  protect  public  buildings  and  their  environs,  and  to  preserve  the 
view,  appearance,  light,  air  and  usefulness  of  public  grounds  occu- 
pied by  public  buildings  and  esplanades  and  parkways  leading  thereto. 

No.  8.    OREGON  STATUTE,  1913  M 

SEC.  3837.  Power  granted  certain  cities  to  appropriate  land  for 
parks,  playgrounds,  etc.  That  it  shall  be  lawful  and  the  right  is 
hereby  conferred  upon  any  incorporated  city  of  this  state  having  ten 
thousand  inhabitants  or  more  to  purchase,  acquire,  take,  use,  enter 
upon  and  appropriate  land  and  property  for  the  purpose  of  public 
squares,  parks,  playgrounds,  comfort  stations,  or  enlarging  any  pub- 
lic square,  park,  playground  or  comfort  station  within  the  corporate 
limits  of  any  such  city  whenever  the  municipal  authorities  thereof 
shall  by  ordinance  determine  thereon. 

SEC.  3838.  Appropriation  of  land  by  certain  cities  in  excess  of 
what  may  be  needed  for  public  squares,  etc.  It  shall  be  lawful  for, 
and- the  right  is  hereby  conferred  upon  any  incorporated  city  of  this 
State  having  10,000  or  more  inhabitants  to  purchase,  acquire,  take, 
use,  enter  upon  and  appropriate  land  and  property  in  excess  of  what 
may  be  needed  for  any  such  public  squares,  parks,  or  playgrounds; 
provided,  however,  that  in  the  ordinance  providing  therefor  the 
municipal  authorities  thereof  shall  specify  and  describe  the  land 
authorized  to  be  taken,  purchased,  acquired,  used  and  appropriated, 
which  land  shall  not  embrace  more  than  200  feet  beyond  the  boun- 
dary line  of  the  property  to  be  used  for  such  public  squares,  parks, 
or  playgrounds,  m  order  to  protect  the  same  by  the  re-sale  of  such 
neighboring  property  with  restrictions  whenever  the  councils  thereof 
shall  by  ordinance  determine  thereon ;  provided,  further,  that  in  the 
said  ordinance  the  councils  thereof  shall  declare  that  the  control  of 
such  neighboring  property  within  200  feet  of  the  boundary  lines  of 

84  Being  an  amendment  to  the  Municipal   Code  of    1902,  made  by  97 
v.  333,  1004;  now  Ohio  General  Code,  1910,  sec.  3677,  par.  12. 
"Ch.  269,  sees.  1-4;  now  Laws  1920,  sees.  3837-3840. 


152  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

such  public  squares,  parks,  or  playgrounds,  is  reasonably  necessary, 
in  order  to  protect  such  public  squares,  parks  or  playgrounds,  their 
environs,  the  preservation  of  the  view,  appearance,  light,  air,  health 
or  usefulness  thereof. 

SEC.  3839.  Sale  of  land  appropriated  in  excess  of  what  needed 
may  be  resold.  That  after  so  much  of  said  land  and  property  re- 
ferred to  in  Section  3838  has  been  appropriated,  as  is  needed,  for 
public  squares,  parks  or  playgrounds  aforesaid,  the  municipal 
authorities  of  such  city  may  by  ordinance  authorize  the  sale  of  the 
remainder  of  such  land  or  property  and  impose  sucl)  restrictions  in 
any  deed  or  deeds  of  resale  as  may  be  deemed  necessary  or  proper; 
provided,  however,  that  such  ordinance  shall  specify  correctly  and 
describe  the  land  or  property  to  be  sold,  and  the  restrictions  in  regard 
to  the  use  thereof  as  will  fully  insure  the  protection  of  such  public 
squares,  parks  or  playgrounds,  their  environs,  the  preservation  of 
the  view,  appearance,  light,  air,  health  or  usefulness  thereof,  when- 
ever the  councils  thereof  shall  by  ordinance  determine  thereon  and 
which  are  to  be  imposed  and  inserted  in  such  deed  or  deeds  of  resale. 

SEC.  3840.  Such  appropriations  declared  public  use.  That  the 
taking,  using,  acquiring  and  appropriating  of  private  property  for 
any  of  the  purposes  herein  specified,  is  hereby  declared  to  be  taking, 
using  and  appropriating  such  private  property  for  public  use;  pro- 
vided, however,  that  the  proceeds  arising  from  the  resale  of  any 
neighboring  property  taken  in  excess  of  what  may  be  necessary  for 
the  actual  construction,  opening,  widening,  extending  and  laying  out 
of  any  such  public  square,  park  or  playground,  as  in  this  act  pro- 
vided, shall  be  deposited  in  the  treasury  of  said  city  and  be  used  in 
the  payment  of  the  interest  and  as  a  sinking  fund  to  retire  any  bond 
issues  herein  authorized.  Any  surplus  arising  from  such  transaction 
shall  be  turned  over  to  and  for  the  use  of  the  park  department  of 
such  city. 

No.  p.    VIRGINIA  STATUTES,  1906-1916* 

SEC.  3065.  To  empower  cities  and  towns  to  acquire  property 
adjoining  parks,  monuments,  etc.,  and  to  dispose  of  same.  Any  city 
or  town  of  this  Commonwealth  may  acquire  by  purchase,  gift,  or 
condemnation,  property  adjoining  its  parks,  or  plats  on  which  its 
monuments  are  located,  or  other  property  used  for  public  purposes, 
or  in  the  vicinity  of  such  parks,  plats,  or  property,  which  is  used  and 
maintained  in  such  a  manner  as  to  impair  the  beauty,  usefulness  or 
efficiency  of  such  parks,  plats,  or  public  property,  and  may  likewise 
acquire  property  adjacent  to  any  street,  the  topography  of  which, 
from  its  proximity  thereto,  impairs  the  convenient  use  of  such  street, 
or  renders  impracticable,  without  extraordinary  expense,  the  ini- 

*Now  Code  of  1919,  sec.  3065. 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S. 


153 


provemeni  of  the  same,  and  the  city  or  town  so  acquiring  any  such 
property  may  subsequently  dispose  of  the  property  so  acquired,  mak- 
ing limitations  as  to  the  use  thereof,  which  will  protect  the  beauty, 
usefulness,  efficiency  or  convenience  of  such  parks,  plats  or  property. 
And  any  city  or  town  in  this  commonwealth  proposing  to  open  or 
widen  a  street  by  taking  any  part  of  a  block  or  square  in  such  a  man- 
ner that  the  value  of  the  property  abutting  the  proposed  street,  would 
be  injuriously  affected  unless  the  property  on  such  block  or  square  is 
re-platted  and  the  property  line  re-adjusted,  then  and  in  that  event 
the  city  or  town  at  the  same  time  it  acquires  the  land  for  said  street 
may,  in  its  discretion  also  acquire  by  purchase,  gift,  condemnation  or 
otherwise,  all  or  any  part  of  the  property  on  such  squares  or  blocks 
and  may  subsequently  replat  and  dispose  of  the  property  so  acquired, 
in  whole  or  in  parts,  making  such  limitations  as  to  the  uses  thereof 
as  it  may  see  fit. 

No.    10.    MASSACHUSETTS    ACT,    PASSED    UNDER    CONSTITUTIONAL 
AMENDMENT  OF  1911  w 

SEC.  I.  The  city  of  Worcester  is  hereby  authorized  to  take  in 
fee  for  the  purpose  of  widening  Belmont  street,  so-called,  in  that  city, 
the  whole  or  parts  of  a  strip  of  land,  not  exceeding  one  hundred  and 
sixty  feet  in  depth,  from  the  southerly  side  of  Belmont  street  between 
the  point  of  intersection  of  the  easterly  line  of  Warden  street  with 
the  southerly  line  of  Belmont  street  easterly  to  the  point  of  intersec- 
tion of  the  westerly  line  of  Lake  avenue  with  the  southerly  line  of 
Belmont  street. 

SEC.  2.  After  so  much  of  the  land  or  property  as  is  taken  by  the 
city  for  the  purpose  of  widening  Belmont  street  on  the  southerly  side 
thereof,  in  accordance  with  the  provisions  of  section  one,  has  been 
appropriated  for  such  street  as  is  needed  therefor,  the  city  may  sell 
the  remainder  for  value,  with  or  without  suitable  restrictions. 

SEC.  3.    This  act  shall  take  effect  upon  its  passage. 


The  city  of 

Worcester 

may  take 

land  for 

widening 

Belmont 

street. 


Remainder 
of  land 
may  be 
sold. 


No.  ii.    NEW  YORK  ACT,  PASSED  UNDER  CONSTITUTIONAL  AMEND- 
MENT ADOPTED  1913 

NEW   YORK    CITY    CHARTER 

Authority  of  city  to  acquire  land  for  streets,  parks,  etc.,  defini- 
tions; power  to  condemn  excess  lands. 

SEC.  970-a.68  When  used  in  this  section  or  section  nine  hundred 
and  seventy-b  of  the  Greater  New  York  charter,  unless  otherwise 

"1912,  ch.  186. 

68  Sec.  97O-a,  and  970-b,  were  added  by  1916,  ch.  112;  reenacting  sub- 
stantially 1915,  ch.  593,  inadvertently  repealed  by  1915,  ch.  606. 


154  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

expressed  stated,  or  unless  the  context  or  subject-matter  otherwise 
requires,  the  word  "improvement"  shall  be  construed  as  synonymous 
with  the  phrase  "laying  out,  widening,  extending  or  relocating  a 
park,  public  place,  highway  or  street,"  or  with  the  phrase  "acquisi- 
tion of  title  to  real  property  required  for  laying  out,  widening,  extend- 
ing or  relocating  a  park,  public  place,  highway  or  street."  The  term 
"excess  lands,"  or  the  term  "additional  lands,"  or  the  term  "addi- 
tional real  property"  shall  each  be  construed  as  synonymous  with  the 
phrase  "real  property  in  addition  (or  additional)  to  the  real  property 
needed  (or  required)  for  laying  out,  widening,  extending  or  relocat- 
ing a  park,  public  place,  highway  or  street."  "The  board"  shall  be 
construed  as  synonymous  with  the  "board  of  estimate  and  apportion- 
ment." The  city  of  New  York  in  acquiring  real  property  for  any 
improvement  may  acquire  more  real  property  than  is  needed  for  the 
actual  construction  of  the  improvement.  The  board  of  estimate  and 
apportionment  may  authorize  the  city  of  New  York  to  acquire  addi- 
tional real  property  in  connection  with  any  improvement,  and  direct 
that  the  same  be  acquired  with  the  real  property  to  be  acquired  for 
the  improvement ;  provided  that  such  additional  real  property  shall 
be  not  more  than  sufficient  to  form  suitable  building  sites  abutting  on 
the  improvement.  The  title  which  the  city  of  New  York  shall  acquire 
to  additional  real  property  shall  in  every  case  be  the  fee  simple  abso- 
lute. Additional  real  property  shall  be  acquired  by  the  city  in  con- 
nection with  a  street  improvement  only  when  the  title  acquired  for 
the  improvement  shall  be  in  fee.  The  acquisition  of  title  to  addi- 
tional real  property  in  connection  with  an  improvement  shall  be 
authorized  by  the  board  in  the  same  manner  and  at  the  same  time  as 
the  acquisition  of  title  to  the  real  property  required  for  the  improve- 
ment is  authorized.  When  the  board  shall  have  authorized  the  acqui- 
sition of  title  to  additional  real  property  in  connection  with  an  im- 
provement, title  to  such  additional  real  property  shall  be  acquired  by 
the  city  in  the  manner  and  according  to  the  procedure  (except  in 
such  respects  as  herein  set  forth)  provided  for  the  acquisition  of 
title  to  the  real  property  required  for  the  improvement  and  in  the 
same  proceeding  in  which  title  to  the  real  property  required  for  the 
improvement  shall  be  acquired.  When  the  board  shall  authorize  tin- 
acquisition  of  additional  real  property  in  connection  with  any  im- 
provement, it  shall  cause  to  be  prepared  and  shall  adopt  a  map  show- 
ing the  real  property  to  be  acquired  for  the  improvement  and  such 
additional  real  property  in  connection  with  the  real  property  to  be 
acquired  for  the  improvement,  and  such  map,  when  approved  by  the 
mayor,  shall  be  certified  by  the  secretary  of  the  board  and  filed,  prior 
to  the  application  to  condemn  the  same,  as  follows :  One  copy  thereof 
in  the  office  in  which  conveyances  of  real  property  are  required  by 
law  to  be  recorded  in  each  county  in  which  the  real  property  or  any 
part  thereof  shown  on  such  map  is  situated;  one  copy  thereof  in  the 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  155 

office  of  the  corporation  counsel;  one  copy  thereof  in  the  office  of 
the  president  of  each  borough  in  which  the  real  property  or  any  part 
thereof  shown  on  such  map  is  situated,  and  one  copy  thereof  in  the 
office  of  the  board.  When  the  board  shall  have  authorized  the  acqui- 
sition of  additional  real  property  in  connection  with  any  improve- 
ment, such  additional  real  property  shall  be  separately  described  in 
the  notice  of  application  to  condemn  by  the  supreme  court  without 
a  jury  or  in  the  notice  of  application  for  the  appointment  of  com- 
missioners of  estimate,  as  the  case  may  be,  and  in  the  petition  pre- 
sented on  any  such  application,  and  separately  shown  on  the  rule  map 
attached  to  the  petition  and  on  the  damage  map  in  the  proceeding, 
and  said  notice  and  petition  shall  state  what  part  of  the  real  property 
to  be  condemned  is  required  for  the  improvement,  and  what  part 
thereof  is  to  be  acquired  as  additional  real  property.  The  acquisi- 
tion of  such  additional  real  property,  when  authorized  by  the  board, 
shall  be  deemed  to  be  for  a  public  purpose.  In  a  proceeding  in 
which  additional  real  property  shall  be  acquired,  the  board,  by  a 
three-fourths  vote,  may  direct  that  on  the  date  of  the  entry  of  the 
order  granting  the  application  to  condemn  by  the  supreme  court  with- 
out a  jury,  or  on  the  date  of  the  filing  of  the  oaths  of  the  commis- 
sioners appointed  by  the  court,  as  the  case  may  be,  or  on  a  date  after 
either,  specified  in  the  resolution  of  the  board,  the  title  to  the  whole 
but  not  less  than  the  whole  of  such  additional  real  property  to  be 
acquired  in  the  proceeding  shall  vest  in  the  city  of  New  York,  pro- 
vided that  such  resolution  shall  also  direct  the  vesting  in  said  city 
simultaneously  of  the  title  to  all  of  the  real  property  being  acquired 
in  the  proceeding  for  the  improvement;  except  that  in  a  proceeding 
involving  the  acquisition  of  title  to  additional  real  property  in  con- 
nection with  the  acquisition  of  title  to  real  property  required  for  a 
street,  highway  or  public  place,  the  board  shall  not  be  required  to 
vest,  at  one  time,  the  title  to  all  the  additional  real  property  to  be 
acquired,  provided,  however,  that  in  vesting  title  to  parts  of  said  addi- 
tional real  property  every  such  part  shall  be  of  at  least  a  block  length 
along  the  improvement,  and  that  no  fractional  portion  of  a  block 
shall  be  contained  in  any  such  part,  and  provided  that  said  board 
shall  also  direct  that  all  the  real  property  required  for  the  street, 
highway  or  public  place  in  such  block  or  blocks  shall  vest  in  the  city 
simultaneously.  Upon  the  date  of  the  entry  of  such  order  granting 
the  application  to  condemn  or  upon  the  date  of  the  filing  of  such 
oaths,  as  the  case  may  be,  or  on  such  date  after  either,  as  may  be 
specified  by  said  board,  the  city  of  New  York  shall  be  and  become 
seized  in  fee  simple  absolute  to  such  additional  real  property.  In  all 
other  cases,  except  as  herein  otherwise  provided,  title  in  fee  simple 
absolute  to  such  additional  real  property  as  may  be  acquired  in  any 
such  proceeding  shall  vest  in  the  city  of  New  York  upon  the  filing  of 
the  final  decree  of  the  court,  or  upon  the  entry  of  the  order  of  the 


156  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

court  confirming  the  report  of  the  commissioners  of  estimate,  as  the 
case  may  be,  as  to  such  additional  real  property ;  and  the  reversal  on 
appeal  of  the  final  decree  or  of  the  order  confirming  the  report,  as 
the  case  may  be,  or  of  any  part  of  either,  shall  not  operate  to  divest 
the  city  of  title  to  any  of  the  real  property  so  acquired.  In  a  pro- 
ceeding in  which  excess  lands  shall  be  acquired,  the  board  shall  not 
have  power  to  direct  the  vesting  of  title  in  the  city  to  the  real  prop- 
erty required  for  the  improvement  without  also  directing  the  vesting 
of  title  in  the  city  simultaneously  to  the  excess  lands  being  acquired 
in  the  proceeding  in  connection  with  the  improvement,  except  that 
the  board  may,  in  the  manner  in  this  section  provided,  direct  that 
title  to  the  real  property  required  for  a  street,  highway  or  public 
place  shall  vest  in  the  city  of  New  York  in  any  block  of  such  street, 
highway  or  public  place  abutting  which  no  excess  lands  are  taken. 
In  any  proceeding  in  which  excess  lands  shall  be  acquired,  when  title 
to  any  part  less  than  the  whole  of  the  real  property  required  for  the 
street,  highway  or  public  place  in  any  one  block  thereof,  between 
legally  existing  public  streets,  shall  vest  in  said  city  upon  and  by 
virtue  of  the  entry  of  the  decree  of  the  court  finally  determining  the 
awards  for  damages  therefor,  or  on  the  date  of  the  entry  of  the  order 
confirming  the  report  of  the  commissioners  of  estimate  in  relation 
thereto,  as  the  case  may  be,  title  to  the  remainder  of  the  real  prop- 
erty required  for  the  street,  highway  or  public  place  in  the  same 
block  and  title  to  the  additional  lands  to  be  acquired  in  the  proceed- 
ing abutting  on  the  street,  highway  or  public  place  in  the  same  block, 
shall  vest  in  said  city  simultaneously,  and  the  reversal  on  appeal  of 
the  final  decree  of  the  court  or  of  the  order  confirming  the  report  of 
commissioners,  as  the  case  may  be,  or  of  any  part  of  either  shall  not 
operate  to  divest  the  city  of  title  to  any  of  the  real  property  so 
acquired  for  the  street,  highway  or  public  place  in  the  same  block  or 
to  the  additional  lands  abutting  thereon.  Upon  the  vesting  of  title  in 
the  city  of  New  York,  as  in  this  section  provided,  to  any  such  addi- 
tional lands  and  to  lands  required  for  the  improvement,  the  city  of 
New  York,  or  any  person  acting  under  its  authority,  may  immedi- 
ately, or  at  any  time  thereafter,  take  possession  of  the  additional 
lands  so  vested  and  of  the  real  property  required  for  the  improve- 
ment so  vested,  or  any  part  or  parts  thereof,  without  any  suit  or 
proceeding  at  law  for  that  purpose.  In  a  proceeding  in  which  addi- 
tional lands  shall  have  been  authorized  to  be  acquired  in  connection 
with  the  improvement,  an  owner  may  not  convey  to  the  city  of  New 
York  any  part  of  the  real  property  to  be  acquired  for  the  improve- 
ment, except  upon  the  approval  of  the  board  of  estimate  and  appor- 
tionment and  of  the  commissioners  of  the  sinking  fund.  After  the 
institution  of  a  proceeding  pursuant  to  this  title,  the  board  of  esti- 
mate and  apportionment  may  amend  the  proceeding  by  authorizing 
the  acquisition  of  lands  additional  to  those  required  for  the  improve- 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  157 

ment,  provided  that  title  shall  not  have  vested  in  the  city  of  New 
York  to  any  parcel  of  real  property  to  be  acquired  for  the  improve- 
ment within  the  block  between  legally  existing  public  streets,  embrac- 
ing the  additional  lands  sought  to  be  acquired.  The  said  board  may 
also  amend  any  proceeding  so  as  to  exclude  any  or  all  additional 
lands  being  acquired  in  the  proceeding,  provided  title  to  such  addi- 
tional lands  shall  not  have  vested  in  the  city.  The  amendment  shall 
be  made  in  the  manner  provided  in  this  title,  and  thereafter  the  pro- 
ceeding shall  be  conducted  in  the  same  manner  as  if  the  additional 
lands  included  or  excluded  by  the  amendment  had  been  included  or 
had  not  been  included  in  the  proceeding  at  the  time  of  the  institution 
thereof.  In  case  title  to  the  real  property  required  for  the  improve- 
ment and  to  the  additional  lands  shall  vest  in  the  city  prior  to  the 
entry  of  the  final  decree  or  order  confirming  the  report  of  the  com- 
missioners, as  the  case  may  be,  interest  on  the  entire  amount  due  to 
the  owner  for  the  real  property  acquired  for  the  improvement,  or  for 
the  excess  lands,  or  for  both,  from  the  date  of  the  vesting  of  title 
thereto  to  the  date  of  the  final  decree  or  to  the  date  of  the  report  of 
the  commissioners  of  estimate,  as  the  case  may  be,  shall  be  awarded 
as  a  part  of  such  owner's  compensation.  All  of  the  provisions  of  this 
title  relative  to  the  payment  by  the  comptroller  of  sums  awarded  as 
damages  and  interest  thereon,  and  to  the  advance  payment  on  account 
of  such  damages,  and  relative  to  the  assignment  or  pledge  of  awards, 
shall  apply  to  awards  of  damages  for  the  taking  of  additional  lands. 
After  title  to  the  real  property  required  for  the  improvement  and  to 
the  additional  lands  shall  have  vested  in  the  city,  the  additional  lands 
may  be  either  held  and  used  by  the  city,  or  sold  or  leased  by  it  in 
the  manner  provided  by  the  Greater  New  York  charter.  The  board 
of  estimate  and  apportionment  may  provide  that  such  additional  lands 
shall'  be  sold  or  leased  subject  to  such  restrictions,  covenants  or  con- 
ditions as  to  location  of  buildings  with  reference  to  the  real  property 
acquired  for  the  improvement,  or  the  height  of  buildings  or  struc- 
tures, or  the  character  of  construction  and  architecture  thereof,  or 
such  other  covenants,  conditions  or  restrictions  as  it  may  deem  proper ; 
and  such  additional  lands  shall  be  sold  or  leased  subject  to  such  re- 
strictions, covenants  or  conditions,  if  any,  as  the  board  of  estimate 
and  apportionment  may  have  prescribed,  which  shall  be  set  forth  in 
the  instrument  of  conveyance  or  lease. 

Authority  to  Assess  and  the  Ascertainment  of  the  Amount  Properly 
Assessable  in  a  Proceeding  in  Which  Additional  Lands  May 
Be  Acquired 

SEC.  970-b.6*    In  every  proceeding  in  which  lands  additional  to 
those  required  for  the  improvement  shall  be  acquired,  the  board  may 

"See  p.   153,  note  68. 


158  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

determine  whether  any,  and  if  any,  what  portion  of  the  damage  due 
to  the  acquisition  of  title  to  the  real  property  required  for  the  im- 
provement, shall  be  borne  and  paid  by  the  city  of  New  York;  and 
the  whole  or  the  remainder  of  such  damages  shall  be  assessed  upon 
the  real  property  deemed  to  be  benefited  by  the  improvement  in  the 
manner  and  according  to  the  procedure  for  levying  assessments  for 
benefit  in  proceedings  had  under  this  title.  The  board  may  also 
determine  whether  any,  and  if  any,  what  portion  of  the  costs  and 
expenses  of  proceeding,  including  the  expenses  of  the  bureau  of 
street  openings  in  the  law  department,  incurred  by  reason  of  such 
proceeding,  shall  be  borne  and  paid  by  the  city  of  New  York,  and 
the  whole  or  the  remainder  of  such  costs  and  expenses,  including  the 
expenses  of  the  bureau  of  street  openings,  shall  be  assessed  upon  the 
real  property  deemed  to  be  benefited  by  the  improvement.  Where 
part  of  a  parcel  of  real  property  shall  be  acquired  for  an  improve- 
ment, and  the  remainder  or  a  portion  of  the  remainder  of  such  parcel 
in  the  same  ownership  shall  be  acquired  in  the  same  proceeding  as 
excess  lands,  the  portion  of  the  damages  due  to  the  acquisition  of 
the  real  property  required  for  the  improvement,  shall  be  determined 
and  stated  separately  from  the  entire  damage  due  to  each  such  owner. 
In  determining  the  damages  due  to  the  acquisition  of  that  portion  of 
such  parcel,  which  is  required  for  the  improvement  (which  shall  be 
the  portion  thereof  properly  assessable),  the  same  rule  shall  be  applied 
as  would  govern  the  determination  of  damages  for  the  taking  of  the 
real  property  required  for  the  improvement,  in  case  no  excess  lands 
were  acquired.  Where  part  of  a  parcel  of  real  property  shall  he 
acquired  for  the  improvement,  and  the  remainder  or  a  portion  of  the 
remainder  thereof  in  the  same  ownership  shall  be  acquired  in  the 
same  proceeding,  as  excess  lands,  the  damages  due  to  the  acquisi- 
tion of  title  to  the  real  property  required  for  the  improvement  (which 
shall  constitute  the  portion  of  the  owner's  total  damages  as  to  such 
parcel,  on  account  of  the  proceeding,  which  shall  be  properly  asses- 
sable), shall,  in  every  case,  equal  the  amount  which  would  be 
awarded  to  such  owner  in  case  only  that  part  of  his  real  property, 
which  shall  be  required  for  the  improvement,  were  acquired.  The 
aggregate  of  damages  due  to  the  acquisition  of  the  real  property 
required  for  the  improvement  shall  be  determined  by  the  court  or 
other  tribunal  authorized  to  determine  the  compensation  to  be  paid 
to  the  owners,  and  when  so  determined,  as  aforesaid,  shall,  if  the 
board  of  estimate  and  apportionment  so  direct,  be  assessed  by  the 
court  or  other  tribunal  authorized  to  levy  the  assessment  for  the 
improvement.  The  real  property  acquired  by  the  city  in  addition  to 
that  required  for  the  improvement  shall  IK-  subject  to  assessment  for 
benefit  due  to  the  improvement,  and  shall  bear  its  proper  share  of 
the  cost  and  expense  of  the  proceeding,  which  may  be  levied  and 
collected  with  the  taxes  upon  the  real  property  in  one  or  more  entire 


EXCESS  CONDEMNATION  ETC.  IN  THE  U.  S.  159 

boroughs.  The  assessment,  which  shall  be  levied  in  any  proceeding, 
upon  the  real  property  acquired  in  addition  to  that  required  for  the 
improvement,  shall  not  in  the  case  of  any  parcel  assessed  exceed  one- 
half  the  fair  value  thereof.  Interest  from  the  date  of  the  vesting  of 
title  to  the  date  of  the  final  decree  of  the  court  or  to  the  date  of  the 
final  report  of  the  commissioners,  as  the  case  may  be,  on  the  sum  or 
sums  determined  as  damages  due  to  the  acquisition  of  the  real  prop- 
erty required  for  the  improvement,  as  hereinbefore  provided,  shall 
be  included  in  and  stated  as  a  part  of  such  damages  due  to  the  acqui- 
sition of  title  to  the  real  property  required  for  the  improvement. 
Nothing  in  this  section  contained  shall  be  construed  as  authorizing 
the  awarding  to  an  owner,  part  of  whose  real  property  is  taken  for 
the  improvement,  and  the  remainder  or  a  portion  of  the  remainder 
of  whose  real  property  is  taken  as  additional  lands,  any  greater 
amount  of  compensation  than  such  owner  shall  be  entitled  to,  by 
reason  of  the  taking  of  his  real  property  for  the  improvement  and 
as  additional  lands,  considered  together  as  one  parcel.  The  provi- 
sions of  section  nine  hundred  and  seventy-a  and  of  this  section  shall 
be  construed  as  supplementing  and  extending  the  effect  of  the  pro- 
visions of  the  other  sections  of  this  title  so  as  to  provide  for  the 
acquisition  of  title  to  additional  lands  in  connection  with  an  improve- 
ment and  for  the  levying  of  assessments  for  benefit  in  such  proceed- 
ings and  nothing  in  section  nine  hundred  and  seventy-a  or  in  this 
section  contained  shall  be  construed  as  limiting  the  effect  of  the  pro- 
visions of  the  other  sections  of  this  title  in  their  application  to  the 
acquisition  of  title  to  real  property  required  for  an  improvement  when 
acquired  in  a  proceeding  in  which  additional  lands  shall  or  shall  not 
be  acquired  or  to  the  levying  of  assessments  for  benefit  in  such  pro- 
ceedings, except  as  the  provisions  of  the  other  sections  of  this  title 
are"  in  section  nine  hundred  and  seventy-a  and  in  this  section 
expressly  so  limited  in  their  application. 

No.  12.    RHODE  ISLAND,  ACT  PASSED  UNDER  CONSTITUTIONAL 
AMENDMENT  ADOPTED  1916 70 

SEC.  i.     Whenever  any  public  highway  in  the  city  of  Providence  City  of 

shall  be  laid  out  .  .  .  the  city  of  Providence  may  acquire  or  take  in  may^cquf 

fee  more  land  and  property  than  is  needed  for  actual  construction  in  m°re  Iand 

the    establishing,   laying   out,   widening,    extending   or    relocating   of  erty  than 

such  public  highway  or  street :  Provided,  however,  that  the  additional  neededyfor 

land  and  property  so  authorized  to  be  acquired  or  taken  shall  be  no  highway 

construe* 

more  in  extent  than  would  be  sufficient  to  form  suitable  building  sites  tion  and 

abutting  on  such  public  highway  or  street ;  and  provided,  further,  that  |^,t°ve" 

the  provisions  of  this  act  shall  apply  only  in  the  particular  instances  when, 
in  which  the  city  council  of  said  city  shall  by  special  vote  so  provide. 

"Being  1917,  ch.   1560. 


i6o 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


Additional 
land  as 
taken,  but 
not  used, 
how  dis- 
posed of. 


*SEC.  2-3.    Procedural. 

SEC.  4.  After  so  much  of  the  land  and  property  has  been  appro- 
priated for  such  public  highway  or  street  as  is  needed  therefor,  the 
additional  land  and  property  so  taken  in  fee  may  be  held  and  improved 
by  said  city  of  Providence  for  any  public  purpose  or  purposes,  or,  by 
resolution  of  said  city  council,  may  be  sold  or  leased  for  value  with 
or  without  suitable  restrictions,  and  in  case  of  any  such  sale  or  lease 
the  person  or  persons  from  whom  such  additional  land  and  property 
was  taken  shall  have  the  first  right  to  purchase  or  lease  the  same  upon 
such  terms  and  conditions  as  said  city  council  is  willing  to  sell  or 
lease  the  same. 

SEC.  5.    This  act  shall  take  effect  upon  its  passage. 


*  Summarized. 


CHAPTER   IV 
PUBLIC  UTILITIES— THE  WATER  FRONT 

Definitions. — A  public  utility  is,  in  law,  a  service  rendered 
the  general  public  of  such  a  nature  and  importance  as  to  con- 
stitute it  a  common  necessity  or  general  convenience,  the  pro- 
vision of  which  cannot  with  safety  be  left  to  the  unrestrained 
enterprise  of  private  individuals.  The  power  to  supply  such 
services  is  therefore  granted  individuals  substantially  under 
conditions  of  regulated  monopoly,  or,  if  need  be,  they  are  per- 
formed by  the  government  itself.  In  practice  the  expression  is 
used  to  denote  a  service,  such  as  the  furnishing  of  water,  gas, 
electricity,  heat,  power,  transportation,  etc.  In  the  decision  of 
the  question  which  services  shall  be  held  to  be  public  utilities, 
historical  considerations  have  great  influence;  but  of  recent 
years  present  conditions  have  caused  additions  to  the  list  of 
such  utilities  to  be  made.  Private  corporations  rendering  such 
services  are  often  referred  to  as  public  utility  corporations, 
and,  by  reason  of  the  public  service  performed  by  them,  are 
considered  quasi-public  and  granted  certain  public  powers, 
such  as  eminent  domain. 

Transportation. — Most,  if  not  all,  of  the  public  utilities 
have  their  place  in  the  city  plan.  For  this  reason  the  granting 
of  the  franchises  to  public  utility  corporations  and  their  regula- 
tion should  be  carefully  considered.  Of  most  importance 
among  these  utilities — indeed  probably  the  greatest  single  influ- 
ence of  any  kind  on  the  city  plan — is  transportation,  the  only 
utility  that  must  precede  the  substantial  growth  in  population 
of  any  locality,  important  as  it  is  that  the  others  should  follow 
as  speedily  as  possible.  The  planning  problems  with  relation 
to  transportation  and  transportation  corporations  are  typical 

161 


162  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

of  those  arising  with  regard  to  these  other  utilities,  and  will 
be  treated  here  as  illustrative  of  them  all.1 

Transportation  makes  and  changes  the  character  of  streets 
and  districts  and  determines  the  distribution  of  population, 
bringing,  if  efficient,  distant  parts  of  the  city,  for  all  practical 
purposes,  near  the  center,  or  if  inefficient,  keeping  nearby  parts 
in  effect  at  a  distance  from  that  center.  Not  only  routes, 
amount,  speed  and  comfort  of  service,  but  rates  of  fare,  make 
the  virtual  city  plan.  It  has  always  been  assumed  that  only  a 
small  proportion  of  the  population  of  a  city  will  live  be- 
yond the  range  of  a  five-cent  fare.  Expensive  subways  are 
profitable  only  where  there  are  multiple  dwellings,  and  soon 
cause  the  private  house  along  their  route  to  be  replaced  by 
the  tenement.  In  these  and  countless  other  ways  which  are 
well  recognized  by  city  planners  and  transport  experts,  trans- 
portation builds  the  city.  If  uncontrolled,  the  planning  of  con- 
struction for  this  purpose  is  done  by  many  irresponsible,  con- 
flicting agencies  in  their  own  interest.  If  the  public  interest  is 
to  prevail,  the  public  must  regulate  and  control  these  agencies, 
or  itself  undertake  to  perform  the  services  they  render. 

Methods  of  Public  Control. — The  public  authorities  may 
exercise  control  over  public  service  corporations  in  several 
ways: — first,  by  the  terms  of  the  franchises  granted  the  pro- 
moters, such  as  the  right  to  be  a  public  service  corporation, 
the  conditions  in  accordance  with  which  that  corporation  is 
allowed  to  use  the  public  streets,  and  the  concessions  demanded 
of  the  corporation  in  return  for  receiving  additional  rights; 
second,  by  the  amendment  of  the  charter,  if  the  right  to  amend 
it  is  reserved;  third,  by  regulating  rates  and  service,  under  the 
police  power,  which  the  public  may  do  in  spite  of  the  fact  that 
the  charter  is  a  contract  and  even  if  there  is  no  reservation  of 
the  right  of  amendment,  alteration,  or  repeal;  fourth,  by 
granting  a  charter  to  a  competing  corporation,  by  itself  com- 

*  See  in  this  connection  "Unification  of  Railroad  Lines  and  Service 
in  Cities,"  being  a  statement  of  principles  drawn  up  by  a  Committee  of 
the  National  Conference  on  City  Planning  for  presentation  tn  the  con- 
ference held  April,  1920;  published  in  its  proceedings,  p.  56  and  in  the 
National  Municipal  Review,  June,  1920,  p.  351,  under  the  title,  "Rail- 
roads in  a  Sound  City  Plan." 


PUBLIC  UTILITIES— THE  WATER  FRONT  163 

peting,  or  by  threatening  to  take  one  or  the  other  of  these 
courses;  fifth,  by  condemning  the  rights  and  property  of  the 
corporation  and  itself  furnishing  the  utility. 

The  Power  to  Grant  and  Change  the  Charter. — The 
charter  giving  individuals  the  right  to  be  a  corporation  is 
granted  by  the  state.  Transportation  enterprises,  like  most 
other  utilities,  by  reason  of  the  amount  of  capital  involved  and 
the  liabilities  incurred,  are  virtually  forced  to  incorporate  and 
thus  subject  themselves  to  a  greater  degree  of  public  control 
than  individuals.  The  charter  also  confers  upon  the  corpora- 
tion the  privilege  of  engaging  in  the  business  of  furnishing  a 
particular  utility  in  a  given  locality,  and  includes  the  conditions 
in  accordance  with  which  the  business  must  be  transacted, 
states  the  duration  of  the  franchise,  and  the  terms,  if  any,  under 
which  the  public  may  take  over  the  rights  and  property  of  the 
corporation.  The  grant  of  additional  privileges  also  comes 
from  the  state,  and  in  return  for  them  any  demands  which  seem 
necessary  may  be  made  upon  the  corporation.  Like  all  large 
enterprises,  transportation  companies,  with  changing  business 
conditions,  are  constantly  in  need  of  legislative  assistance  in 
the  way  of  new  authority.  Thus  they  may  need  to  take  addi- 
tional property  by  eminent  domain,  change  their  motive  power, 
or  their  routes.  The  public  may  make  these  favors  conditional 
on  extensions  or  improvements  of  service.  It  is  the  state  also 
which  possesses  the  power  to  amend  the  charter,  if  such  power 
exists.  A  charter,  under  our  law,  has  been  held  to  be  a  con- 
tract the  provisions  of  which  are  subject  to  the  police  power 
but  cannot  be  altered,  nor  can  the  charter  be  revoked,  unless 
these  rights  are  reserved.  This  was  early  decided  by  the  Su- 
preme Court  of  the  United  States  in  the  famous  Dartmouth 
College  case.2  The  decision  is  now  generally  regarded  as  un- 
fortunate and  its  effect  has  been  in  large  part  counteracted  by 
statutes,  now  universal,  making  all  charters  subsequently  is- 
sued subject  to  alteration,  amendment  and  repeal.3  These 

2  Dartmouth  College  v.  Woodward,  4  Wheaton  (U.  S.)   518  (1819). 

3  The  device  was  suggested  in  one  of  the  opinions  in  the  case.     The 
statutes  often  make  the  acceptance  of  any  amendment  of  the  charter  by 
the  corporation  an  agreement  that  the  charter  itself  shall  thereafter  be 
subject  to  amendment,  alteration  and  repeal.    Amendments  are  also  subject 
to  these  rights. 


164  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

statutes  do  not  leave  the  corporation  without  protection.  If 
the  charter  is  repealed,  the  corporation  cannot  be  deprived  of 
its  property ;  and  furthermore  the  legislature  is  only  authorized 
by  amendment  "to  make  any  alteration  or  amendment  of  a 
charter  granted  subject  to  it,  which  will  not  defeat  or  sub- 
stantially impair  the  object  of  the  grant,  or  any  rights  vested 
under  it,  and  which  the  legislature  may  deem  necessary  to  secure 
either  that  object  or  any  public  right."  4 

Route  and  Location. — The  city  is  generally  given  by  the 
state  the  power  to  prescribe  the  route  which  the  corporation 
must  follow  in  traversing  the  city,  and  the  locations  which  the 
corporation  must  adopt  in  the  streets  through  which  it  goes. 
This  power  enables  the  city  to  make  the  utility  conform  to  and 
aid  the  planning  of  the  city  in  the  general  interest.  This  route 
and  these  locations,  the  city  may  under  its  police  power  require 
the  corporation  to  change  at  its  own  expense,  except  as  the 
state  has  granted  the  corporation  a  specific  route  or  specific 
locations;  and  even  then  minor  changes  may  be  enforced. 

Rates  and  Facilities. — As  a  public  carrier  the  transporta- 
tion company  in  the  city  is  not  free  to  earn  for  its  stockholders 
any  dividend  it  can  by  charging  any  fare  it  is  able  to  collect. 
In  the  absence  of  a  contract  with  the  authorities  granting  it  bet- 
ter terms,  the  company  is  entitled  at  most  to  a  reasonable  return 
on  the  money  it  has  actually  invested.  Moreover,  having  de- 
voted its  property  to  a  public  use,  it  has  thereby  obligated 
itself  to  render  a  service  at  rates  which  shall  not  exceed  the 
reasonable  value  of  that  service,  even  if  by  misfortune  or  bad 
judgment  it  cannot,  in  any  particular  case,  earn  its  full  return. 
Nor  is  it  the  judge  of  what  facilities  it  shall  offer.  These  fa- 
cilities must  in  every  way  be  adequate.  The  company  and  its 
stockholders  are  protected,  however,  by  this  doctrine  of  reason- 
ableness, and  by  constitutional  provisions  against  taking  prop- 
erty without  compensation ;  for  the  making  of  unreasonable 
requirements  under  which  the  company  would  not  be  allowed 
to  earn  a  fair  return  is  in  effect  a  taking. 

«N.  Y.  and  N.  E.  R.  R.  Co.  v.  Bristol,  151  U.  S.  556  (1894).  See 
generally,  Cook,  Corporations  (7th  ed..  1913),  Vol.  2,  sec.  501  ;  Thomp- 
son, Corporations  (2d  ed.,  supplement),  sec.  414. 


PUBLIC  UTILITIES— THE  WATER  FRONT  165 

The  problem  most  difficult,  perhaps,  of  settlement  with 
fairness  both  to  the  public  and  to  the  transportation  companies, 
is  the  rate  of  fare  that  may  be  charged.  In  this  country  a  flat 
rate  for  the  city  and  its  suburbs  has  been  considered  more  for 
the  public  interest  than  zones  of  fare,  so  common  abroad,  on 
the  ground  that  the  zone  fare  tended  to  keep  the  people  in  the 
congested  parts  of  the  city,  while  a  flat  rate  encouraged  them  to 
live  in  the  suburbs  under  more  healthful  conditions.5  The  five 
cent  fare  so  usual  here  has  also  been  considered  important  to 
the  public.  The  recent  advance  in  costs  of  all  kinds  has  led 
the  companies  to  demand,  and  many  communities  to  concede, 
an  increase  in  fares.  This  increase  has  in  some  cases  taken 
the  form  of  an  addition  to  the  flat  rate,  in  others,  of  zone  fares. 
In  every  instance  the  increases  have  greatly  decreased  travel, 
especially  short  hauls,  by  which  the  companies  profit  most.  The 
result  has  been  a  curtailment  of  facilities,  and  a  further  increase 
of  fare  which  the  remaining  passengers  are  forced  to  meet. 
Whether  in  time  travel  will  adjust  itself  to  the  new  rates,  or 
be  permanently  lessened,  to  the  great  disadvantage  of  the  com- 
munity, it  is  too  early  to  decide.  It  has  been  suggested  that  a 
low  rate  for  a  short  trip  in  non  rush  hours  would  under  present 
conditions  benefit  both  the  communities  and  the  public ;  but  no 
sufficient  investigation  of  this  possibility  has  ever  been  made. 
A  low  rate,  short  distance  zone  has  also  been  suggested.  An- 
other device  for  securing  regular  additional  traffic  is  the 
monthly  ticket. 

A  method  of  fixing  rates  formerly  suggested  by  public 
authorities  as  a  means  of  lowering  fares  thought  by  them  to 
be  unjustly  high,  and  of  late  urged  by  the  companies  as  a 
means  of  raising  fares  now  that,  as  they  claim,  they  are  un- 

5  It  is  claimed,  however,  in  a  recent  article,  "Zone  Fares  for  Street 
Railways"  by  Walter  Jackson  in  the  National  Municipal  Review  for 
November,  1920,  p.  705,  that  a  zone  fare  lessens  congestion  by  tending 
to  build  up  local  centers.  The  writer  very  properly  points  out  the  fact 
that  density  of  population  is  dependent  upon  many  factors,  of  which 
methods  of  regulating  street  railway  fares  is  only  one.  It  should  be 
noted  in  this  connection  that  the  zone  fare  is  advocated  _by  the  street 
railway  companies  not  as  an  improved  method  of  charging  the  same 
fare  as  heretofore  but  as  a  means  of  increasing  fares;  and  that  whether 
necessary  and  just  or  not,  such  increases  are  sure  to  have  many  results 
besides  the  possible  building  up  of  local  centers. 


166  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

justly  low,  is  called  service  at  cost.  By  it  the  investment  of 
the  company  is  fixed  at  a  given  value  and  the  company  guar- 
anteed in  future  the  cost  of  the  service  and  a  given  return  on 
that  value.  Rates,  therefore,  would  fluctuate  from  time  to 
time  as  costs  fluctuated,  but  dividends  would  remain  fixed. 
Service  at  cost  agreements  are  in  many  forms,  with  reserves 
to  meet  and  equalize  fluctuations  in  costs  thought  to  be  tem- 
porary and  thus  avoid  frequent  changes  of  the  fare,  with  in- 
creased returns  to  the  company  as  a  bonus  for  good  manage- 
ment, in  some  cases  with  dividends  varying  with  the  rate  of 
fare,  etc.  The  difficulties  in  making  a  contract  and  a  valuation 
under  it  just  to  both  parties,  which  shall  ensure  good  service  and 
at  the  same  time  economical  and  progressive  management,  are 
great.  It  should  not  be  forgotten  that  in  such  contracts  the 
capital  becomes  more  or  less  a  fixed  basis  for  dividends  guar- 
anteed by  the  public  against  the  contingencies  that  beset  other 
enterprises ;  and  that  unless  the  public  secures  an  equivalent  ad- 
vantage it  should  not  enter  into  an  agreement  which  may  fetter 
it  so  seriously  for  many  years  to  come.0  Rates  and  service  are 
so  dependent  upon  conditions  subject  to  change  that,  so  far  as 
other  considerations  permit,  they  should  be  left  for  regulation 
from  time  to  time  instead  of  being  fixed  by  charter  or  long 
term  contract.7 

Granting  Charter  to  Competing  Corporation. — The 
granting  of  charters  to  competing  corporations,  when  dissatis- 
fied with  the  rates  or  services  of  those  in  existence  is  a  crude 
and  wasteful  method  of  administering  public  utilities;  for  both 
the  old  and  the  new  corporation  must  be  allowed  to  earn  a  fair 


*See  on  the  subject  of  service  at  cost  the  Report  of  the  Federal 
Electric  Railways  Commission  to  the  President,  August,  1920;  Govern- 
ment Printing  Office,  Washington,  1920;  aN<>  Flexible  Fares  or  Serv- 
ice at  Cost  as  Applied  to  the  New  York  Transit  Lines,"  a  report  of  the 
City  Club  of  New  York,  January,  1921. 

*For  further  information  the  reader  is  referred  to  two  pamphlets 
by  Dr.  Dclos  F.  Wilcox,  the  first  entitled  "Solving  the  Traction  I'rol>- 
lem,"  being  an  address  delivered  at  the  New  York  State  Confi-rence  of 
Mayors,  June  12,  1919,  and  the  second  called  "The  Transit  Problems 
of  New  York  City,"  November,  1919,  in  which  Dr.  Wilcox  had  the  ad- 
vantage of  the  criticism  of  a  group  of  representative  men. 


PUBLIC  UTILITIES— THE  WATER  FRONT  167 

return  on  their  investment,8  and  the  public  pays  for  the  dupli- 
cation, which  usually  is  not  so  convenient  to  the  public  as  a 
single  system.  The  same  evils  result  if  the  municipality  itself 
constructs  and  operates  the  duplicate  system  or  leases  it  to 
others  to  operate.  The  losses  are,  as  a  rule,  disguised  by  the 
fact  that  they  are  paid  out  of  general  taxation,  but  they  never- 
theless still  exist. 

Public  Ownership  and  Management. — If,  finally,  the 
city  is  not  satisfied  with  its  regulation  of  the  semi-private  cor- 
poration, it  may  wholly  or  partly  assume  its  task.  If  the  road 
is  already  built  the  city  may,  under  its  power  of  eminent  do- 
main, take  the  franchises  and  property,  real  and  personal,  of 
the  transportation  company,  either  itself  running  the  road  or 
leasing  it  under  stringent  operating  conditions ;  or  the  city  may 
itself  build  a  competing  road;  or,  if  the  road  is  not  yet  built, 
the  city  may  itself  in  the  first  instance  build  it,  constructing  it  as 
a  public  highway,  assessing  its  cost  against  the  land  owners 
benefited,  if  desired,  and  operating  it  or  leasing  it  for  opera- 
tion afterwards. 

The  Franchise  of  the  Private  Company. — In  spite  of 
the  possibilities  of  the  regulation  of  franchises  already  granted, 
the  safest  course  is  properly  to  limit  and  define  the  franchises, 
in  the  public  interest,  at  the  time  they  are  given,  and  to  secure 
to  the  authorities  the  right  to  regain  these  franchises  on  favor- 
able terms. 

There  has  been  much  time  and  study  given  to  the  deter- 
mination of  the  elements  of  a  model  franchise.  In  discussing 
this  subject  we  will  still  continue  to  take  transportation  as  an 
example  of  utilities  generally.9 

8  The  certificate  of  public  convenience  and  necessity,  usually  re- 
quired before  a  franchise  will  be  granted,  sometimes  nowadays  requires 
the  new  company  to  show  that  it  can  drive  its  competitor  out  of  the 
field  at  a  rate  based  upon  a  fair  return  on  its  own  investment. 

*  See  Delos  F.  Wilcox,  "Municipal  Franchises,"  McGraw-Hill  Book 
Co.,  New  York  Ciy,  1910  and  1911;  the  chapter  on  the  same  subject 
by  the  same  author,  in  the  Digest  of  Short  Ballot  Charters,  by  Gilbert- 
son;  A  Model  City  Charter  and  Municipal  Home  Rule  as  prepared  by 
the  Committee  on  Municipal  Program  of  the  National  Municipal  League, 
final  ed.,  March  15,  1916,  p.  46 ;  the  Report  of  the  Committee  on  Fran- 
chises of  the  National  Municipal  League,  to  the  Conference  at  Toronto, 


168  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  street  railway  franchise,  like  most  if  not  all  public  serv- 
ice franchises,  if  granted  to  a  public  service  corporation  at  all, 
should  be  monopolistic.  With  proper  regulations  and  limita- 
tions, this  method  insures  the  most  effective  system  with  the 
lowest  rates.  In  so  far  as  it  is  too  late  to  adopt  this  policy,  the 
joint  use,  with  compensation,  of  tracks  in  the  central  parts  of 
the  city  and  at  other  strategic  points  should  be  secured,  so  that 
the  growth  of  outlying  systems,  which  to  be  useful  and  self- 
supporting  must  reach  these  parts  of  the  city,  may  be  obtained, 
and  wasteful  and  inconvenient  duplication  of  facilities  be 
avoided.  If  competition  must  be  allowed,  transfers  without 
charge,  so  far  as  possible,  should  be  insisted  on,  so  that  in  its 
travel  the  public  may  obtain  to  some  extent  the  advantages  of 
one  system.  All  grants  should  be  made,  not  necessarily  for  the 
same  period,  but  rather,  if  granted  at  different  times,  to  expire 
at  the  same  date.  In  this  way  a  better  system  may  be  planned 
and  secured  when  the  rights  are  regranted.  No  charge  should 
be  made  to  the  companies  for  the  rights  granted  them,  nor  any 
attempt  made,  by  extraordinary  taxation  or  otherwise,  to  obtain 
revenue  from  them;  for  the  companies  must  reimburse  them- 
selves for  such  outlays.  A  better  method  is  to  require  the  com- 
panies to  furnish  adequate  service  at  the  lowest  practicable 
rates.  Public  utilities  are  the  life  blood  of  the  community,  and 
it  is  better  policy  to  obtain  revenue  from  almost  any  other 
source. 

The  grant  of  the  right  to  lay  tracks  in  particular  streets 
should  be  subject  to  the  consent  of  a  percentage  of  the  abutters, 
but  an  appeal  to  the  courts  or  a  public  service  commission 
should  be  provided  for,  on  whose  certificate  of  public  necessity 
and  convenience  permits  to  lay  the  tracks  may  be  granted.  In 
determining  whether  a  fair  rate  of  profit  has  been  earned,  ex- 
tensions— which,  at  least  in  the  beginning,  are  likely  to  be  less 
profitable  than  the  rest  of  the  system — should  not  be  considered 
separately,  but  as  a  part  of  the  entire  system. 

November,  1913,  in  the  Annals  of  the  Academy  of  Political  and  Social 
Science,  Vol.  57  of  January,  1915,  p.  8;  a  Supplement,  issued  April, 
1920,  of  the  National  Municipal  Review  entitled  "A  Correct  Policy  toward 
the  Street  Railway  Problem" ;  and  generally  the  annals,  the  reports  of 
the  Proceedings  of  the  League,  and  the  Volumes  of  the  National  Mu- 
nicipal Review. 


PUBLIC  UTILITIES— THE  WATER  FRONT  169 

Example  of  New  York  City. — New  York  City  in  the 
construction  of  its  subways  furnishes  an  example  of  good  and 
bad  practice  in  bestowing  franchises  of  this  nature.  In  grant- 
ing the  rights  for  the  construction  of  the  original  subway  the 
city  allowed  the  company  to  build  a  road  up  the  east  side  of  the 
narrow  island  of  Manhattan,  across  it  at  42nd  Street,  and  up 
on  the  west  side.  This  route  was  the  most  profitable  route  for 
the  old  company,  but  gave  it  the  power  to  prevent  the  con- 
struction of  any  new  system  on  reasonable  terms  either  on  the 
east  or  the  west  side  of  the  city;  and  besides  it  stimulated 
growth  in  the  most  concentrated  parts  of  the  city  and  thus  in- 
creased congestion.  The  old  subway  also  confirmed  the  lines 
of  growth  in  a  northerly  and  southerly  direction  and  narrowed 
instead  of  broadening  the  city. 

In  granting  the  franchises  for  the  new  subway  these  mis- 
takes were  in  a  measure  avoided,  but  at  great  expense  to  the 
city  on  account  of  the  power  which  its  strategic  position  gave 
the  old  company.  The  new  subways  extend  into  the  undevel- 
oped suburbs  of  the  city  in  nearly  all  directions,  thus  at  last 
making  New  York  a  round  city. 

Another  mistake  made  in  the  construction  of  the  old  sub- 
way was  the  failure  to  coordinate  it  with  other  necessary  city 
planning  measures.  Transportation  was  advocated  at  that 
time  as  a  sufficient  cure  in  itself  for  the  intense  congestion  of 
the  lower  east  side.  Without  the  proper  regulation  of  future 
building,  increased  transportation  facilities  proved  to  be,  as 
always,  little  more  than  a  palliative.  It  did  not  relieve  materi- 
ally the  overcrowding  of  the  lower  east  side,  and  it  built  up  a 
congestion  almost  as  bad  in  the  Bronx.  In  the  new  subway 
construction  the  city  has  done  better.  The  city  was  not  able 
to  see  its  city  problems  as  a  whole,  but  at  least,  after  its  partial 
solution  of  the  problem  of  transportation,  it  proceeded  to  pass 
its  well-known  zoning  regulation  of  building,  so  that  the  city 
certainly  will  not  lose  the  advantages  of  its  increased  transporta- 
tion facilities  to  anything  like  the  same  extent  that  it  did 
before.10 

Recapture. — If  the  city  wishes  to  adopt  the  policy  of  mu- 

10  For  more  on  this  subject,  see  p.  28. 


170  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

nicipal  ownership,  the  right  of  recapture  of  franchises  becomes 
most  important;  and  in  any  event  it  is  a  wise  policy  to  secure 
this  right  as  a  protection  against  unsatisfactory  private  man- 
agement of  utilities  and  as  a  method  of  spurring  the  semi- 
private  corporations  administering  them  to  good  service.  The 
right  under  eminent  domain  to  take  utility  franchises  and 
plant  is  an  insufficient  protection  against  inefficiency  and  exces- 
sive charges  for  many  reasons,  chief  among  which  is  the  fact 
that  the  companies  will  claim  that  the  franchise  itself  is  prop- 
erty for  which  the  city  must  pay  a  price  which  increases  with 
the  growth  of  the  city. 

There  are  many  methods  of  securing  to  the  city  the  right  of 
recapture.  The  franchise  may  be  granted  for  a  fixed  term, 
with  the  right  to  take  it  and  the  plant  and  equipment  at  a  fixed 
price,  or  at  a  valuation  made  by  some  disinterested  body;  or 
the  corporation  may  be  required  to  surrender  the  franchise  and 
plant  to  the  city  at  the  end  of  the  term  without  further  com- 
pensation. Little  perhaps  is  gained  by  such  a  stipulation;  for 
the  public  must  in  some  form  pay  the  corporation  a  reasonable 
return  for  its  services,  capital  invested,  and  risks  incurred; 
and  the  equipment,  so  necessary  to  the  city's  prosperity  and  well- 
being,  is  inevitably  allowed  to  deteriorate  more  and  more  as  the 
end  of  the  period  approaches.  A  better  plan  perhaps  is  to 
grant  a  franchise  terminable  at  the  option  of  the  city  at  any 
time,  or  after  the  expiration  of  a  very  short  period,  with  com- 
pensation at  a  fixed  price  or  at  a  valuation.  This  is  the  method 
that  is  least  likely,  also,  to  deter  the  corporation  from  making 
necessary  extensions. 

The  Water  Front. — Cities  situated  on  navigable  water  are 
privileged  to  have  communication  by  water  as  well  as  by  land. 
The  use  of  the  water  for  this  purpose  is  dependent  upon  the 
ownership  of  land  giving  access  to  the  water.  For  this  reason 
the  city's  water  front  is  unique. 

The  ownership  of  land  bordering  upon  a  non-navigable 
stream  or  body  of  still  water  carries  with  it  ownership  of  the 
land  under  water  to  the  center.  If,  however,  the  water  is 
navigable,  the  law  as  to  the  ownership  of  the  bank  or  shore, 
and  the  land  under  water,  differs  in  the  different  states  in  this 


PUBLIC  UTILITIES— THE  WATER  FRONT  171 

country;  in  some  the  title  being  in  the  owner  of  the  upland  sub- 
ject to  the  public  right  of  navigation,  in  others  that  title  being, 
to  a  greater  or  less  extent,  in  the  state.  Almost  universally, 
however,  the  owner  of  this  upland  has  certain  rights  in  this 
navigable  water  other  than  those  belonging  to  the  public.  The 
most  important  of  these  rights  is  that  of  access,  including  the 
right  to  build  wharves  and  piers  for  exclusive  use,  in  such  a 
way  as  not  to  interfere  with  public  navigation,  over  the  sub- 
merged land  to  deep  water.  In  England,  where  there  are  no 
such  large  rivers  and  lakes  as  with  us,  only  water  where  the 
tide  ebbs  and  flows  is  legally  held  to  be  navigable ;  but  with  us 
the  legal  test  is  navigability  in  fact.11 

Bulkhead  Lines. — In  planning  a  harbor  it  is  necessary 
to  fix  the  inter-relation  of  navigable  water  and  the  land  ap- 
proaches to  it.  This  is  done  by  fixing  bulkhead  lines,  up  to 
which  ships  may  go  and  beyond  which  solid  filling  from  the  land 
into  the  water  shall  not  be  carried ;  and  pier  head  lines,  beyond 
which  nothing  shall  extend  from  the  land  into  the  water.  In 
planning  a  harbor  and  the  city  which  it  serves,  it  is  often  neces- 
sary to  provide  for  the  possibility  of  land  transportation  by 
bridges  across  navigable  waters,  thus  obstructing  them  some- 
what. In  all  civilized  countries  neither  of  these  two  things 
can  be  done  without  public  authority. 

The  Noncommercial  Water  Front — Recapture. — The 
water  front,  indispensable  for  commerce,  is  of  great  use  to  a 
city  for  boulevards,  parks,  and  beaches,  giving  health  and 
pleasure  to  be  obtained  in  no  other  way.  Cities  should  realize 
that  land  on  the  water  front  is  invaluable,  and  if  any  of  it 
must  be  parted  with,  should  make  the  transfer  for  a  limited 
period,  such  as  25  or  at  most  50  years ;  with  the  right  of  recap- 
ture on  reasonable  terms  within  a  much  shorter  period.  The 
limitation  of  grants  of  land  under  water,  like  the  limitation 


nln  some  states  the  owner  of  the  upland  has  a  preferred  right  to 
purchase  tide  lands  from  the  state;  29  Cyc.  of  Law  and  Procedure,  358, 
and  note  43.  The  state,  in  most,  jurisdictions,  has  no  right  without  com- 
pensation to  deprive  the  owner  of  the  upland  of  access;  Farnham,  Law 
of  Waters,  Vol.  i,  p.  302  and  ff.  The  establishment  of  a  bulkhead  line 
as  a  rule  confers  upon  the  owner  of  the  upland  authority  to  fill  to  this 
line;  Gould,  Law  of  Waters  (3d  ed.)  sec.  138. 


172  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

of  franchise  grants,  is  a  necessary  part  of  the  conservation  of 
property  essential  to  the  public  welfare.  Any  other  course  is  a 
failure  to  guard  a  precious  heritage  for  those  who  come  after 
us.12 

"Under  the  charter  of  the  City  of  New  York  (sec.  71)  "The  rights 
of  the  city  in  and  to  its  water  front,  ferries,  wharf  property,  land  under 
water,  public  landings,  wharves,  docks,  streets,  avenues,  parks,  and  all 
other  public  places  are  hereby  declared  to  be  inalienable."  The  legisla- 
ture of  the  state,  however,  may  pass  statutes  for  the  alienation  of  such 
rights ;  and  the  city  may  lease  marginal  property,  and  land  under  water 
for  the  limited  periods  (Charter,  sees.  83-84). 

In  1917,  the  Citizens  Union  of  New  York  City  introduced  into  the 
state  legislature  of  that  year  a  bill  (Senate  Introductory  No.  907,  Crom- 
well; Assembly  Introductory  No.  1264,  Youker)  requiring  the  state  to 
make  all  future  grants  of  land  under  water  on  condition  that  they  may 
be  retaken  for  any  public  purpose  on  repayment  of  "the  consideration 
paid  by  the  original  grantee  for  the  grant,  together  with  an  allowance 
for  improvements."  The  Citizens  Union,  in  their  memorandum  with 
regard  to  the  bill,  says : — 

"The  first  instance  of  the  use  of  a  recapture  clause  in  this  state  was 
in  1002,  when  the  late  Mayor  of  New  York,  Seth  Low,  prevailed  upon 
the  State  Land  Commission  to  insert  it  in  all  grants  by  the  state.  There 
were  but  two  or  three  exceptions  to  this  rule  up  to  1914.  .  .  ." 

This  bill  did  not  pass,  but  the  State  and  City  of  New  York  still 
adhere  to  the  practice  of  inserting  a  recapture  clause  in  grants  of  land 
under  water.  See  on  this  subject:  New  York  State,  Attorney  General, 
Grants  of  Land  under  Water  (J.  B.  Lyon  Co.,  Albany,  1913)  ;  New 
York  State,  Report  of  Attorney  General  for  1920  (Legislative  Docu- 
ment, 1921,  No.  53;  J.  B.  Lyon  Co.,  Albany,  1921),  pp.  303,  333,  349  ff. 

The  recapture  clause  inserted  in  grants  of  land  under  water  by  the 
City  of  New  York  (to  be  found  on  p.  338  of  that  report)  is  as  follows: 

"Upon  the  express  condition  that  if  the  City  of  New  York  shall  at 
any  time  hereafter  acquire  said  premises  and  'improvements,'  or  a  part 
or  portion  thereof,  by  condemnation  or  otherwise,  the  liability  of  the 
City  of  New  York  shall  be  limited  to  the  amount  paid  by  said  patentee 
to  the  State  for  this  patent,  or  a  proportionate  part  thereof,  together 
with  the  expenses  necessarily  incurred  by  the  patentee  for  the  acquiring 
of  this  patent,  which  are  hereby  fixed  at  the  sum  of  $350,  and  also  the 
value  of  the  'improvements'  on  said  premises,  or  the  proportionate  part 
thereof  which  may  be  so  acquired.  The  value  of  such  'improvements' 
if  all  are  so  acquired,  or  such  proportionate  part  of  the  amount  paid  by 
said  patentee  for  this  patent  and  of  the  value  of  such  'improvements' 
on  a  portion  of  such  lands  which  may  be  so  acquired  by  the  City  of 
New  York,  and  all  damages,  if  any,  to  the  remainder  of  such  'improve- 
ments' which  may  not  be  so  acquired,  to  be  paid  by  the  City  of  New 
York,  may  be  determined  in  any  proceeding  brought  by  or  on  behalf 
of  the  City  of  New  York  for  such  acquisition." 


CHAPTER  V 
STREETS—SETBACKS— TRAFFIC  REGULATIONS 

Streets. — The  previous  consideration  of  various  details  in 
the  planning  of  a  city,  and  the  law  applicable  to  these  details, 
has  involved  the  discussion  of  many  legal  problems  relating 
to  the  construction  of  specific  public  features  of  the  city.  There 
still  remain  a  few  of  these  public  features  with  relation  to 
which  the  law  requires  further  statement,  the  first  of  which  to 
be  so  considered  being  streets. 

The  streets  of  a  city  are  constructed  with  the  double  pur- 
pose of  serving  the  general  public  and  the  abutter.  The  public 
is  entitled  to  use  them  as  avenues  of  communication.  The 
abutter  is  entitled  to  obtain  from  the  street,  light,  air,  view  and 
access  for  his  property.  The  city  cannot  without  compensation 
deprive  him  of  these  advantages,  or  diminish  them,  except  to 
aid  communication.1 

Taking  Easement  Versus  Taking  Fee. — In  street  con- 
struction it  was  formerly  the  custom  for  the  city  to  take  merely 
the  amount  of  interest  in  the  land  to  be  so  used  that  was  abso- 
lutely necessary  for  the  purpose.  This  interest  is  an  easement 
to  use  the  land  for  street  purposes.  The  law  does  not  restrict 
the  city  in  its  taking  to  the  limited  right  that  is  essential  for 
street  use.  If  for  any  reason  it  seems  expedient,  the  city  may 
be  given  the  right  to  take  full  ownership  or  "fee";  for,  as  has 
already  been  pointed  out,  the  manner  and  extent  of  the  exer- 
cise of  a  power  for  a  proper  purpose  is  for  the  legislature  in  its 

1McQuillin,  Munic.  Corps.,  Vol.  Ill,  p.  2848;  see  also  Elliott  on 
Roads  and  Streets,  sec.  26,  notes  36,  39.  In  some  jurisdictions,  where 
the  abutter  does  not  own  the  fee,  such  deprivation  is  not  a  taking  of 
property  for  which  he  has  a  constitutional  right  to  recover,  but  only  a 
damage  for  which  he  is  repaid  if  there  are  statutes  in  his  jurisdic- 
tion giving  him  that  right;  see  Nichols,  Eminent  Domain,  2d  ed.,  sec.  115. 

173 


174  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

wisdom  to  determine.2  It  is  now  more  customary  than  hereto- 
fore to  give  the  city  the  power  to  take  the  entire  title  or  "fee" 
to  lands  needed  for  streets,  and  for  cities  to  exercise  this  full 
power.  Experience  proves  the  wisdom  of  such  a  course.  There 
are  cases  in  which  the  taking  of  easements  is  an  economy :  but 
as  a  rule  the  full  title  costs  the  city  little  more  than  the  limited 
right,  and  is  much  more  valuable  to  it.  Owning  the  fee,  the 
city  can  always  allow  the  abutting  property  owner  to  use  the 
property  to  such  an  extent  as  may  be  expedient  and  resume  its 
full  rights  at  any  time  without  cost  to  it. 

Effect  on  Abutters'  Rights. — The  statutes  and  decisions 
of  the  various  states  are  not  in  harmony  as  to  the  differences 
resulting  from  the  taking  of  an  easement,  as  distinguished  from 
a  fee,  in  the  land  wanted  for  streets.  Where  the  city  owns  the 
fee  it  is  settled  that  the  abutter  may  not  occupy  any  part  of  the 
surface,  sub-surface  or  super-surface  of  the  street  except  with 
the  city's  permission  and  on  payment  of  any  charge  that  the 
city  may  make;  whereas  if  the  city  has  taken  only  an  easement 
for  street  use,  the  remaining  uses  belong  to  the  abutter,  and 
the  city  cannot  exclude  him  from  them  or  require  him  to  pay 
for  enjoying  them.  Thus  if  the  city  owns  the  fee,  and  an 
abutter  wishes  to  build  a  vault  under  a  part  of  the  sidewalk, 
he  can  do  so  only  with  the  city's  consent,  revocable  at  any  time, 
paying  for  the  privilege  whatever  the  city  may  charge.  If, 
however,  the  city  owns  only  an  easement,  the  sole  question  is 
whether  the  space  desired  by  the  abutter  is  needed  for  sewers, 
water  pipes,  or  some  other  street  use.  If  not,  the  space  belongs 
to  the  abutter,  and  he  has  the  right  to  use  it  without  payment 
to  the  city.8 

With  this  exception  the  better  opinion  is  that  there  is  no 
practical  difference  in  the  two  cases  in  the  relative  rights  of 
the  abutters  and  the  city.  In  either  case  the  city  and  its  citizens 
may  employ  the  street, — surface,  sub-surface  and  super-sur- 
face,— for  any  legitimate  street  purpose;  in  either  case,  the 
abutter  is  entitled  to  access,  light,  air  and  view  from  the  street. 
Thus  the  public  may  avail  itself  of  the  street  for  the  passage  of 

•See  p.  21. 

*McQuillin,  Municipal  Corporations,  Vol.  Ill,  pp.  2848,  2898. 


STREETS— SETBACKS— TRAFFIC  REGULATIONS  175 

persons  and  vehicles  with  goods,  but  not  for  sandwich  men  and 
vehicles  covered  with  advertisements ;  the  abutter,  where  it  does 
not  unduly  interfere  with  the  use  of  the  sidewalk  by  passersby, 
may  unload  boxes  across  it,  but  may  not  store  boxes  on  it.  It 
is  customary,  however,  in  parts  of  many  cities  to  allow  the  abut- 
ter to  occupy  the  city's  land  beyond  the  street  line,  on,  over  or 
under  the  surface,  for  steps,  porticos,  vaults,  bridges  and  other 
private  purposes  until  such  time  as  the  city  itself  needs  the  land. 
Sometimes  the  city  actually  draws  encroachment  lines  beyond 
which  the  abutter  may  not  go.  The  city  does  not  lose  its  right 
to  take  this  land  by  lapse  of  time  as  a  private  owner  would  do; 
and  if  neither  the  city  nor  the  abutter  is  allowed  to  forget  the 
actual  state  of  affairs,  there  is  no  reason  why  this  advantage, 
which  costs  the  city  nothing,  should  not  under  a  revocable 
license  be  allowed  the  land  owner. 

Removal  of  Encroachments. — When,  however,  traffic 
increases,  there  is  no  relief  so  quick  and  effective  as  the  removal 
of  encroachments  and  the  widening  of  the  driveway  by  adding 
to  it  a  portion  of  the  sidewalk.  Expensive  as  this  is  sure  to  be 
to  the  abutter,  he  should  not  regard  it  as  a  hardship ;  for  he  has 
accepted  the  use  of  a  portion  of  the  city  land  free  of  charge 
on  the  chance  that  it  would  be  worth  more  than  the  subsequent 
reconstruction  would  cost  him,  and  must  accept  the  results  of 
his  speculation;  in  which  as  a  rule  he  is  not  a  loser.  He  also 
gains  by  the  widening  of  the  roadway,  which  makes  his  land 
more  serviceable  to  him  and  raises  its  value.  Mr.  McAneny, 
under  whose  administration  as  President  of  the  Borough  of 
Manhattan  in  the  City  of  New  York  encroachments  were  in 
many  cases  removed  and  the  capacity  of  streets  to  accommodate 
the  traffic  thus  increased,  incurred  at  first  much  enmity  by 
pursuing  this  policy;  but  soon  the  advantages  of  thus  virtually 
widening  the  streets  were  admitted  even  by  the  owners  whose 
encroachments  were  removed.  Perhaps  no  act  in  Mr.  Mc- 
Aneny's  public  life  proved  in  the  end  more  popular. 

Street  Use. — Under  the  decisions  of  the  courts  street  use 
includes  the  transmission  of  messages,  the  passage  of  gas, 
water,  electricity,  etc.,  with  the  poles,  wires,  pipes,  conduits  and 
other  appliances  necessary  for  these  purposes ;  for  this  is  a  use 


i;6  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

of  the  streets  for  communication,  and  the  streets  are  intended 
to  be  avenues  of  communication.  In  practice  the  streets  are 
utilized  for  newsstands,  and  many  other  private  businesses 
which  are  not  aids  to  communication.  To  what  extent  such  an 
employment  of  this  public  space  is  legal  is  still  uncertain.  There 
seems  to  be  a  tendency  at  least  to  tolerate  as  a  street  use  any  use 
which  has  become  customary  and  is  generally  regarded  as  a 
convenience  to  the  public.  These  and  all  street  uses  and  the 
methods  of  accomplishing  them  necessarily  change  with  time 
and  custom  and  public  needs. 

Use  of  Streets  by  Transportation  Companies. — The 
most  important  and  difficult  questions  with  regard  to  street  uses 
arose  in  reference  to  the  utilization  of  streets  by  transportation 
companies.  It  was  early  held  that  the  employment  of  horse 
cars  with  tracks  in  the  surface  of  the  streets  by  a  semi-private 
corporation  to  transport  local  passengers  through  the  streets, 
was  as  much  a  street  use  as  the  passage  of  persons  on  foot  or 
in  private  vehicles;  and  that,  therefore,  the  abutter  was  not 
entitled  to  damages  from  such  a  transportation  company.  This 
decision  was  due  not  only  to  the  fact  that  such  a  use  was  cus- 
tomary and  proper,  but  also  to  the  fact  that  cars  drawn  by 
horses  on  the  surface  of  the  street  did  not  appreciably  increase 
the  burden  cast  upon  the  abutter.  Gradually,  with  changing 
methods  of  transportation,  the  abutter's  rights  and  privileges 
have  been  encroached  upon.  The  courts  in  the  different  states 
still  differ  in  their  distinction  between  what  is  and  what  is  not  a 
street  use  for  which  a  corporation  must  pay  abutters  damages. 
The  tendency  of  the  legal  decisions  is  to  draw  the  line  as  fol- 
lows : — Corporations  may,  without  payment  to  abutters,  trans- 
port local  passengers  by  any  motor  power  at  grade;  if,  how- 
ever, they  employ  subways  or  elevated  structures,  or  carry 
freight  or  other  than  local  passengers,  they  are  liable  to  abut- 
ters. It  is  difficult  to  see  why  the  latter  uses  are  not  logically 
as  strictly  street  uses  as  the  former.  Apparently  the  decisions 
in  this  particular  line  of  cases  have  come  to  turn  rather  on  the 
actual  burden  cast  upon  the  abutter  than  upon  the  question 
whether  the  use  is  a  legitimate  street  use. 


STREETS— SETBACKS— TRAFFIC  REGULATIONS          177 

Setbacks. — A  setback  or  front  building  line  4  is  a  line 
behind  the  street  line  beyond  which  on  his  own  land  the  abut- 
ter  must  not  erect  buildings,  the  land  owner  retaining  the  right 
to  use  his  land  for  all  other  purposes.  The  establishment  of 
such  a  line  is  therefore  the  taking  by  the  city  of  an  easement 
under  the  right  of  eminent  domain  in  the  land  abutting  on  the 
street  in  question,  the  city  paying  not  the  value  of  the  land,  but 
merely  the  value  of  the  easement.5  This  easement  varies  with 
the  statute  and  the  ordinance  drawn  under  it  by  which  the  line 
is  fixed.  Under  some  ordinances  nothing  can  be  built  beyond 
this  line ;  under  others,  where  perhaps  lawns  are  deep,  porches, 
piazzas,  etc.,  are  allowed  to  project  for  a  certain  distance,  a 
subsidiary  porch  and  piazza,  line  being  drawn.  As  a  rule,  to 
save  expense,  buildings  in  advance  of  the  building  line  at  the 
time  it  comes  into  existence  are  allowed  to  remain,  but  not  to 
be  renewed  or  substantially  repaired ; 8  and,  to  avoid  too  great 

*  The  building  line  or  setback  has  been  resorted  to  in  this  country 
for  many  years ;  and  statutes  authorizing  its  use  will  often  be  found 
in  the  private  laws  of  the  various  states,  and  the  charters  of  their  cities. 
In  Connecticut,  for  instance,  the  establishment  of  a  building  line  was 
authorized  in  Hartford  in  1799;  in  New  Haven  in  1826,  Bridgeport  and 
Norwich,  1836.  The  provisions  will  be  found  in  the  private  laws  of 
the  state,  Vol.  I.  For  many  more  or  less  similar  acts,  see  the  private 
laws  for  1859,  1897,  1911,  1913,  1915,  1917.  The  subject  is  now  regulated 
in  Connecticut  by  general  laws ;  Gen.  Stats.  1918,  sec.  392  ff.,  519  ff. 
For  the  laws  in  the  various  states  on  this  subject  see  Tables  of  Statutes. 

"  Perhaps,  however,  by  zoning,  setbacks  may  be  established  under 
the  police  power  without  compensation;  for  the  law  on  this  subject  see 
p.  279.  It  should  be  noted  also  that  in  Pennsylvania  (as  on  the  Continent 
of  Europe;  see  p.  177)  as  a  result  of  the  practice,  sustained  by  the 
courts  of  that  state  (see  p.  31)  a  building  line  may  be  established  in 
street  widenings  without  compensation  to  the  owner  of  the  land  and 
buildings,  except  for  the  land  at  the  time  it  is  taken;  the  owner  being 
meanwhile  forbidden  to  renew  or  substantially  repair  the  buildings.  For 
examples  of  such  procedure  see  among  many  others  ordinances  of  Phila- 
delphia for  the  widening  on  the  city  plan  of  Chestnut  Street,  approved 
March  31,  1884,  June  23,  1888,  and  June  30,  1892.  See  also  the  recent 
Pennsylvania  statutes — '1921,  Nos.  62  and  295  on  the  subject,  given  on 
p.  587  of  this  work.  In  this  connection  the  ordinances  for  arcading  isth 
and  South  Penn.  Square  streets  in  Philadelphia  by  the  same  method, 
approved  on  June  9,  1900,  may  be  of  interest.  See  also  "Street  Widen- 
ing to  Meet  Traffic  Demands"  by  Nelson  P.  Lewis,  in  the  Proceedings 
of  the  9th  National  Conference  on  City  Planning  (1917),  P-  43- 

8  Massachusetts  originally  passed  its  building  line  statute  (Acts  1893, 
ch.  462)  without  this  provision;  and  little  use  was  made  of  this  power 
until  it  was  amended  as  here  suggested.  For  the  statute  in  the  present 
form,  see  p.  184  of  this  work. 


i;8  TH1-:  LAW  OF  CITY  PLANNING  AND  ZONING 

irregularity  in  the  frontage  of  the  buildings  and  too  long  delay 
in  completing  the  improvement,  the  city  often  condemns  the 
remaining  buildings  or  parts  of  buildings  in  advance  of  the 
line  when  in  course  of  time  they  have  become  few  or  of  little 
value. 

Uses  of  Setbacks. — The  setback  may  be  employed  with 
advantage  as  a  feature  in  the  construction  and  use  of  three 
classes  of  streets : — suburban  and  minor  residential  streets, 
suburban  business  and  traffic  streets  and  business  and  traffic 
streets  in  the  more  central  parts  of  cities.  The  problems  that 
arise  in  these  three  situations  will  here  be  treated  separately. 

Suburban  and  Minor  Residential  Streets. — In  small 
communities  outside  the  business  center,  and  in  the  suburbs  of 
larger  communities,  a  desirable  and  profitable  form  of  develop- 
ment of  land  on  smaller  and  side  streets  is  that  of  houses  with 
lawns  in  front;  and  districts  so  developed  will  often  be  found 
in  such  neighborhoods.  Such  districts  are  sometimes  the  result 
of  the  establishment  of  a  setback  by  private  covenants  in  deeds 
inserted  by  the  owner  of  a  large  tract,  or  of  tacit  agreement  by 
many  individual  builders  of  homes.  Where  the  location  of 
the  district  is  'wisely  chosen,  appropriate  restrictions  of  this 
sort  raise  land  values,  because  they  make  a  neighborhood  more 
quiet,  pleasant  and  healthful  for  residence.  Such  districts,  also, 
decrease  the  congestion  and  increase  the  light  and  air  of  the 
community  as  a  whole.  In  most  cases,  therefore,  there  is  no 
reason,  economic  or  social,  why  the  character  of  the  district 
should  not  remain  unchanged  for  many  years. 

Private  covenants,  however,  expire,  and  tacit  agreements 
may  be  violated  with  impunity  by  any  land  owner.  In  order, 
therefore,  to  preserve  the  district  in  the  interest  of  the  owners 
and  the  city  it  is  often  necessary  to  provide  for  public  setbacks. 
Nor  is  the  utility  of  the  publicly  created  building  line  limited 
to  these  districts.  There  may  be  other  districts  which  should 
be  improved  in  this  way ;  but,  except  where  the  land  owners  arc 
few  in  number,  it  is  seldom  possible  to  get  them  all  to  agree; 
and  without  such  an  agreement  it  is  impossible  to  establish  the 
restriction,  unless  sanctioned  and  enforced  by  the  public  au- 
thorities. 


STREETS— SETBACKS— TRAFFIC  REGULATIONS          179 

Suburban  Business  and  Traffic  Streets. — A  charac- 
teristic of  the  age  in  which  we  live  is  the  growth  of  cities,  both 
in  population  and  in  business  and  industry  in  proportion  to 
population.  This  growth  seems  invariably  to  occasion  a  more 
intensive  employment  of  land,  due,  in  any  given  locality,  either 
to  an  increase  in  the  same  use  or  to  a  shift  to  a  more  intensive 
use.  In  either  case  an  added  burden  is  thrown  upon  the  streets, 
the  main  business  thoroughfares  receiving  most  of  it.  This 
occurs  both  in  the  central  and  in  the  more  outlying  parts  of 
cities,  and,  in  both  cases,  often  makes  it  desirable  to  provide 
for  the  adaptation  of  the  streets  to  the  change  of  conditions 
likely,  with  time,  to  occur.  The  problem  is  by  no  means  the 
same  one  in  city  suburbs  and  city  centers.  In  the  centers  the 
streets  have  long  been  built,  and  it  is  no  longer  possible  to 
choose  a  flexible  form  of  street  construction;  nor  can  changes 
in  the  streets  be  made  without  great  expense.  In  the  suburbs, 
however,  there  are  still  streets  to  be  laid  out,  and  the  streets 
that  already  exist  are  not  so  intensively  improved.  These  prob- 
lems should  therefore  be  considered  separately,  and  it  is  the 
suburban  problem  that  will  be  now  taken  up. 

In  laying  out  a  new  street  which  may  become  important  for 
business  or  traffic  two  courses  are  open  to  the  city,  by  either 
of  which  the  future  widening  of  the  street  may  be  provided 
for.  The  city  may  at  once  take  land  of  a  width  adequate  for 
future  needs  and  allow  the  abutters  to  use  strips  on  each  side 
for  narrow  lawns,  or  it  may  lay  out  the  street  just  broad 
enough  for  present  uses  and  impose  a  setback  on  the  abutters, 
so  that  when  the  street  is  widened  it  will  not  be  necessary  to 
pay  for  buildings.  Either  course  avoids  the  waste  of  main- 
taining a  paved  roadway  of  needless  width,  gives  the  abutters 
the  advantage  of  strips  of  green  as  long  as  possible,  and  avoids 
useless  destruction  of  buildings.  The  wisest  course  for  the 
city  to  pursue  is  perhaps  to  take  the  entire  width  if  the  authori- 
ties have  good  grounds  for  thinking  that  it  will  be  needed 
within  a  reasonable  time  and  there  is  money  in  the  treasury  for 
the  purpose;  but  otherwise  to  be  satisfied  with  the  narrower 
street  and  a  building  line. 

The  advantages  of  imposing  a  setback  on  land  abutting  on 


i8o  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

streets  of  this  character  after  they  have  been  constructed,  when 
this  is  still  reasonably  possible,  are  admirably  stated  in  a 
pamphlet  issued  by  the  Committee  on  City  Plan  of  the  City 
of  New  York.7  The  committee  points  out  the  "practical  im- 
possibility" of  changing  the  lines  of  a  street  improved  to  its 
very  edge,  whatever  the  increase  of  the  burden  is  that  is  cast 
upon  it.  This  obstacle  is  avoided  by  the  use  of  the  building 
line  before  such  an  intensive  development  occurs. 

"The  existence  of  the  set-back  line"  the  authors  say,  "will  permit 
the  economical  widening  of  traffic  arteries  whenever  traffic  needs 
require.  It  introduces  a  measure  of  adaptation  and  elasticity  in 
street  design  that  is  of  immense  importance  in  view  of  the  almost 
prohibitive  expense  of  widening  a  street  once  laid  out  and  improved. 

"The  fixing  of  the  set-back  line  now  is  the  only  practical  method 
by  which  the  widening  of  many  traffic  arteries  can  be  secured  in  the 
future  when  greater  width  will  assuredly  be  required.  These  arteries 
are  now  residence  streets  and  the  houses  have  been  set  back  in  order 
to  provide  lawn  and  shade  and  to  remove  them  from  dust,  fumes  and 
noise  of  the  street.  They  cannot  be  widened  at  present,  as  the  cut- 
ting off  of  the  front  lawns  would  in  large  measure  destroy  the  value 
of  the  dwellings.  When,  however,  traffic  has  so  increased  that  the 
street  must  be  widened  it  is  more  than  likely  that  the  street  will  be 
no  longer  desirable  for  private  residence  purposes,  and  the  private 
dwellings  will  be  replaced  either  by  apartments  or  by  business  build- 
ings. The  set-back  line  can  therefore  be  established  when  the  future 
traffic  thoroughfare  is  still  a  residence  street,  with  advantage  to  all 
owners,  and  when  the  time  comes  to  widen  the  street  to  meet  traffic 
needs  the  set  back  can  be  taken  for  street  purposes  and  this,  too,  will 
be  to  the  advantage  of  the  owners.  By  thus  imposing  the  set-back 
line  and  then  widening  the  street  at  the  very  time  that  these  things 
can  be  done  with  greatest  advantage,  both  to  the  owners  and  the 
City,  the  traffic  artery  can  be  secured  at  a  minimum  expense." 

The  extract  just  quoted  not  only  states  the  advantages 
derived  from  the  flexibility  obtained  by  the  use  of  the  front 
building  line  but  also  illustrates  the  usefulness  of  the  building 
line  in  securing  an  orderly  shifting  from  one  development  to 
another.  When  the  residential  street,  with  houses  set  back 
from  it,  changes  to  a  street  of  apartment  houses  or  stores,  these 

T  "Establishment  of  Setbacks  or  Court  Yards  in  the  City  of  New 
York,"  issued  in  1917  in  advocacy  of  a  city  bill,  since  passed  by  the  lepris- 
lature  (1917,  ch.  631)  Riving  the  city  power  to  establish  such  lines.  The 
statute  is  given  in  full  on  page  185  of  this  work. 


STREETS— SETBACKS— TRAFFIC  REGULATIONS  181 

buildings  in  all  probability  will  advance  to  the  very  edge  of 
the  paved  sidewalk.  Such  changes  usually  cannot  and  should 
not  be  opposed;  for  the  higher  land  values  generally  indicate 
that  the  new  use  is  of  greater  importance  to  the  community; 
but  the  change  should  not  be  made  at  the  whim  of  one  or  two 
shortsighted  or  selfish  land  owners,  who  by  building  to  the 
sidewalk  force  an  immediate  and  general  change  against  the 
interests  of  the  street  as  a  whole,  and  temporarily  impair  land 
values  for  the  entire  street.  With  a  setback  established,  such 
a  change  is  impossible  until  the  city,  in  the  general  interest 
or  the  interest  of  the  majority  of  the  property  owners  on  the 
street,  removes  the  restriction  and  authorizes  the  change  of 
use. 

On  such  a  street  there  is  often  a  special  need  of  a  setback 
at  street  corners.  As  communities  grow  and  traffic  increases, 
corners  are  the  first  to  develop  to  the  very  street  line.  This 
situation  in  this  age  of  rapidly  moving  automobile  traffic  in- 
vites collisions.  In  such  cases,  no  doubt,  the  city  can  well 
afford  to  pay  for  the  right  it  takes  to  maintain  a  view  around 
corners  in  the  interest  of  traffic  movement. 

Central  Business  and  Traffic  Streets. — The  widening  of 
streets  in  city  centers,  intensively  improved  with  buildings  on 
each  side  to  the  street  line,  is  sometimes  imperative.  The 
expense  in  such  cases  is  very  great,  and  is  due  much  more 
to  the  value  of  the  buildings  that  must  be  demolished  than 
to  the  cost,  large  as  it  is,  of  the  land  that  must  be  taken.  In 
such  improvements  much  may  be  saved  by  establishing  a 
building  line  back  of  the  street  line  and  of  the  fronts  of  the 
buildings,  under  the  provisions  of  which  buildings,  in  so  far 
as  they  are  in  advance  of  this  line,  shall  not  be  renewed  or 
substantially  repaired.  In  this  way  the  city  is  not  forced  to 
take  the  buildings  until  they  are  of  comparatively  little  value. 
Such  a  street  widening  is  slow,  but  the  great  saving  effected 
makes  many  improvements  possible  that  otherwise  would  not 
be  undertaken. 

Economy  of  Setback. — In  the  accomplishment  of  all  three 
of  the  purposes  set  forth  above  the  use  of  the  setback  is  an 
economy.  In  districts  where  front  lawns  are  appropriate  the 


182  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

line,  if  established  seasonably,  is  altogether  for  the  advantage 
of  the  property  owners  and  may  be  fixed  without  expense  to 
them  or  the  city ;  for  the  theoretical  damage  to  the  land  owner 
due  to  the  restriction  placed  on  his  property  is  at  least  equalled 
by  the  benefit  to  him  of  the  restrictions  imposed  upon  his  neigh- 
bors. As  an  adjunct  to  suburban  business  and  traffic  streets  the 
setback  is  economical  because  it  saves  future  waste  and  expense 
and  interferes  little  with  present  uses,  or  even  promotes  them. 
These'two  uses  of  the  front  building  line  are  by  far  the  most 
essential  and  the  most  usual.  Of  their  financial  results  in 
Brookline,  Massachusetts,  the  report  of  the  planning  board 
for  1915  says: — 

"The  statement  designated  'Appendix  D'  is  of  interest  as  indi- 
cating in  a  general  way  the  extent  to  which  the  building  line  has 
been  used  in  Brookline  since  its  acceptance  in  1896.  Between  1898 
and  January  ist,  1916,  the  law  has  been  applied  to  twenty-one  streets 
and  a  total  frontage  of  33,303.63  lineal  feet.  The  set-back  varies 
from  five  to  twenty  feet  and  has  an  average  of  10.3  feet.  On  thir- 
teen streets  no  award  has  been  made  or  only  a  nominal  award.  An 
easement  for  building  lines  has  been  taken  from  one  hundred  and 
eight  property  owners  and  of  this  number  ninety  received  either  no 
award  or  merely  a  nominal  award  for  damages.  The  total  cost  to 
the  town  of  building  lines  on  the  twenty-one  streets  has  been 
$1,687.00.  The  total  area  restricted  has  been  315,907.9  square  feet, 
making  the  average  cost  to  the  town  for  building  restriction  for  all 
building  lines  about  one-half  cent  per  square  foot.  There  is  but  one 
outstanding  suit  for  damages  for  establishment  of  building  lines  and 
no  suit  for  such  damages  has  ever  been  brought  to  trial." 

It  remains  to  consider  the  cost  of  the  setback  as  a  method 
of  increasing  the  width  of  intensively  developed  streets.  The 
claim  cannot  be  made  for  it  that  it  accomplishes  the  desired 
result  at  a  small  expense,  for  this  cannot  be  brought  about  by 
any  method.  It  does  lessen  the  outlay  more  than  can  be  done 
in  any  other  way,  and  this  is  all  that  can  be  hoped  for.  By  its 
use  many  of  the  heaviest  items  of  expenditure  are  eliminated, 
and  all  the  rest  remain  the  same  or  are  not  greatly  increased. 

Setback  lines  may  be  established  by  the  procedure  employed 
for  laying  out  streets,  any  costs  being  assessed  against  the 


STREETS— SETBACKS— TRAFFIC  REGULATIONS          183 

abutters  in  proportion  to  their  benefits,  as  in  street  openings.8 
If  this  is  done  there  will  be  few  cases  in  which  a  proper  build- 
ing line,  except  where  it  is  used  to  widen  intensively  developed 
streets,  is  of  any  expense  to  the  city  as  a  whole.  The  financial 
results  to  the  town  of  Brookline,  just  quoted,  are  all  the  more 
remarkable  because  such  assessments  are  not  provided  for  under 
the  Massachusetts  law.  The  setbacks,  like  streets  and  other 
public  features,  should  be  a  part  of  the  city  map. 

The  constitutionality  of  setback  statutes  to  be  established 
under  the  power  of  eminent  domain  cannot  be  questioned.  The 
interest  in  the  extra  land  is  condemned  for  a  street  use;  the 
legislature  has  decided  to  take  an  easement  in  land  for  these 
purposes  instead  of  the  entire  title;  and  the  wisdom  of  this  de- 
cision cannot  be  challenged  by  the  courts,  for  it  is  a  question 
for  the  legislature  alone  to  decide.  Such  legislation  is  common 
abroad,  has  existed  and  has  been  used  for  many  years  in  sev- 
eral of  our  states  and  has  received  the  approval  of  our  courts. 

Traffic  Regulation. — In  the  exercise  of  its  police  power 
the  city,  in  order  to  facilitate  traffic,  has  the  right  to  impose 
regulations  upon  abutters  and  the  general  public  in  their  use 
of  sidewalks  and  roadway.  Those  regulations  are  of  many 
sorts,  such  as  limiting  the  hours  during  which  abutters  in 
crowded  parts  of  the  city  may  load  and  unload  goods  across 
the  sidewalk,  forbidding  vehicles  to  stand  longer  than  a  certain 
time  at  certain  places  and  requiring  vehicles  to  obey  certain  di- 
rections of  police  stationed  at  congested  corners.  Special 
streets  are  often  subject  to  special  rules.  Thus  in  some  cities 
traffic  in  certain  narrow  streets  called  "one  way  streets"  is 
allowed  to  go  only  in  one  direction;  and  on  some  boulevards 
only  pleasure  vehicles  are  permitted.  Traffic  regulations  are 
likely  to  become  more  specific  as  congestion  in  cities  increases. 
For  instance,  streets  are  laid  out  of  a  given  width  to  accom- 
modate a  given  number — two,  three,  four  or  more — of  streams 
of  vehicles  with  space  for  a  standing  vehicle  at  one  or  both 
curbs.  A  vehicle  appreciably  wider  than  the  average  taken  as 

8  For  references  to  building  line  statutes,  under  which  in  most  cases 
the  costs  are  paid  by  local  assessment,  see  p.  184,  ff. 


Building 
lines. 


Damages. 


184  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  basis  of  this  calculation  entirely  spoils  this  nice  adjustment. 
As  streets  where  buildings  and  land  are  perhaps  too  expensive 
to  condemn  for  street  widening  approach  their  capacity,  more 
and  more  careful  traffic  regulation  may  be  the  only  relief  from 
intolerable  congestion. 

Note  C 
Setback  or  Building  Line  Statutes  in  the  United  States 

No.  i.    MASSACHUSETTS* 

If  a  city  by  its  city  council  or  a  town  accepts  this  section  or  has 
accepted  corresponding  provisions  of  earlier  laws,  a  building  line  not 
more  than  40  feet  distant  from  the  exterior  line  of  a  highway  or 
town  way  may  be  established  in  the  manner  provided  for  laying  out 
ways,  and  thereafter  no  structures  shall  be  erected  or  maintained 
between  such  building  line  and  such  way,  except  steps,  windows,  por- 
ticos and  other  usual  projections  appurtenant  to  the  front  wall  of  a 
building  to  the  extent  prescribed  in  the  vote  establishing  such  build- 
ing line,  and  except  that  buildings  or  parts  of  buildings,  embank- 
ments, steps,  walls,  fences  and  gates  existing  at  the  time  of  the  estab- 
lishment of  the  building  line  may  be  permitted  to  remain  and  to  be 
maintained  to  such  extent  and  under  such  conditions  as  may  be  pre- 
scribed in  the  vote  establishing  such  building  line.  Whoever  sus- 
tains damage  thereby  may  recover  the  same  under  chapter  seventy- 
nine  [eminent  domain].  A  building  line  established  under  this  sec- 
tion may  be  discontinued  in  the  manner  provided  for  the  discontinu- 
ance of  a  highway  or  town  way.  Whoever  sustains  damage  by  the 
discontinuance  of  a  building  line  may  recover  the  same  under  chap- 
ter seventy-nine. 

No.  2.    INDIANA" 

Such  board  [of  park  commissioners  of  first  or  second  class  cities] 
may  establish  a  line  determining  the  distance  at  which  all  structures 
to  be  erected  upon  any  premises  fronting  any  park,  parkway,  park 
boulevard  or  boulevard  shall  be  erected;  and  may,  in  the  name  of 
the  city,  acquire  by  condemnation  the  right  to  prevent  the  erection  of, 

'This  statute  was  first  passed  in  1893  (ch.  462)  authorizing  a  set- 
back of  not  more  than  twenty-five  feet.  Under  this  law  there  was  no 
provision,  as  in  the  present  law,  for  allowing  existing  buildings  to  re- 
main, and  it  was  little  used.  The  law  here  given  is  Gen.  Laws  1920, 
ch.  82,  sec.  37.  For  similar  provisions  with  regard  to  towns  with  boards 
of  survey,  see  Gen.  Laws,  1920,  ch.  41,  sec  So. 

"Acts  1911,  p.  566,  part  of  sec.  7;  Burns'  Annot.  Ind.  Statutes,  1914, 
sec  8753. 


STREETS— SETBACKS— TRAFFIC  REGULATIONS  185 

and  to  require  the  removal  of,  all  structures  outside  of  such  lines; 
and  when  so  condemned,  no  permit  shall  be  issued  authorizing  any 
structure  outside  of  the  line  or  lines  so  established;  and  no  such 
permit  issued  by  any  department  or  officer  of  any  such  city  shall  be 
effective  and  valid,  unless  approved  by  the  board  of  park  commis- 
sioners of  such  city.  The  establishing  of  any  building  line  outside  of 
any  park,  parkway,  or  boulevard,  as  herein  provided,  in  connection 
with  the  condemnation  of  the  land  for  the  same,  shall  be  understood 
to  be  condemnation  and  the  perpetual  annihilation  of  all  rights  of 
the  owners  of  property  which  shall  front  on  such  park,  parkway  or 
boulevard,  or  across  which  such  building  line  shall  run,  to  erect  any 
building  or  structure  whatever  or  any  part  thereof  between  such 
building  line  and  such  boulevard,  park  or  parkway;  or  such  result 
may  be  accomplished  by  absolute  condemnation  of  the  land,  with 
perpetual  and  irrevocable  free  license  to  use  and  occupy  such  land 
between  any  building  line  established  and  the  outside  line  of  such 
park,  parkway,  park  boulevard  or  boulevard  for  all  purposes  except 
the  erection  of  buildings  or  other  structures.  No  subdivision  into' 
lots  of  any  lands  lying  within  five  hundred  feet  of  such  boulevards, 
parks  or  parkways  shall  be  valid  without  the  approval  of  such  board 
of  park  commissioners;  .  .  . 

No.  3.    NEW  YORK  u 
The  City  May  Acquire  Real  Property  for  Streets,  Parks,  Etc. 

New  York  City  Charter,  Sec.  970.  The  city  of  New  York  may 
acquire  title  either  in  fee  or  to  an  easement,  as  may  be  determined 
by  the  board  of  estimate  and  apportionment,  for  the  use  of  the  pub- 
lic, to  all  or  any  of  the  real  property  required  for  streets  and  court- 
yards abutting  streets,  and  for  parks,  parkways,  playgrounds,  ap- 
proaches to  bridges  and  tunnels  and  sites  or  lands  above  or  under 
water  for  bridges  and  tunnels,  and  sites  or  lands  above  or  under 
water,  for  all  improvements  of  the  navigation  of  waters  within  or 
separating  portions  of  the  city  of  New  York,  or  for  the  improvement 
of  the  water  fronts  of  the  city  of  New  York,  or  part  or  parts  thereof, 
heretofore  duly  laid  out  upon  the  map  or  plan  of  the  city  of  New 
York,  of  the  city  of  Brooklyn,  or  Long  Island  City,  or  of  any  of  the 
territory  consolidated  with  the  corporation  heretofore  known  as  the 
mayor,  aldermen  and  commonalty  of  the  city  of  New  York,  or  here- 

"The  provision  with  regard  to  setbacks  (here  called  "courtyards 
abutting  streets")  was  made  by  the  statutes  of  the  State  of  New  York 
of  IQ1?;  ch.  631,  as  an  amendment  to  the  sections  of  the  charter  for  the 
acquisition  of  land  for  streets,  parks,  etc.,  and  is  phrased  with  a  fullness 
of  detail^  characteristic  of  legislation  in  that  state.  The  amendment  is 
here  distinguished  from  the  former  law  by  being  placed  in  italics. 


186  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

after  duly  laid  out  upon  the  map  or  plan  of  the  city  of  New  York,  as 
herein  constituted,  and  cause  the  same  to  be  opened,  or  acquire  title 
as  above  stated  to  such  interests  in  real  property  as  will  promote  pub- 
lic utility,  comfort,  health,  enjoyment,  or  adornment,  the  acquisition 
of  which  is  not  elsewhere  provided  for.  The  board  of  estimate  and 
apportionment  may  specify  what  use  is  required  of  the  real  property 
which  it  may  determine  shall  be  acquired  for  public  use,  and  the 
extent  of  such  use,  and  may  direct  the  same  to  be  acquired  whenever 
and  as  often  as  it  shall  deem  it  for  the  public  interest  so  to  do.  The 
real  property  required  for  such  purposes  may  be  taken  therefor,  and 
compensation  and  recompense  shall  be  made  to  the  owners  thereof. 
The  real  property  benefited  by  the  improvement  may  be  assessed  for 
the  benefit  and  advantage  derived  therefrom.  In  all  proceedings 
authorized  by  the  board  of  estimate  and  apportionment  prior  to  the 
first  day  of  January,  nineteen  hundred  and  seventeen,  the  said  board 
shall  determine  whether  the  compensation  to  be  made  to  the  owners 
of  the  real  property  to  be  acquired  shall  be  ascertained  by  the  supreme 
court  without  a  jury,  or  by  three  commissioners  of  estimate  to  be 
appointed  by  the  said  court.  In  proceedings  in  which  the  board  of 
estimate  and  apportionment  shall  determine  that  the  compensation  to 
be  made  to  the  owners  of  the  real  property  to  be  acquired  shall  be 
ascertained  by  the  supreme  court  without  a  jury,  the  city  of  New 
York  shall  make  application,  or  cause  application  to  be  made  to  the 
said  court,  in  a  county  within  the  city  of  New  York  and  within  the 
judicial  district  in  which  the  real  property  to  be  acquired  is  situated, 
to  have  the  compensation,  which  should  justly  be  made  to  the  respec- 
tive owners  of  the  real  property  proposed  to  be  taken,  ascertained  and 
determined  by  the  said  court  without  a  jury,  and  to  have  the  cost  of 
the  improvement,  or  such  portion  thereof  as  the  board  of  estimate 
and  apportionment  shall  direct,  assessed  by  the  court  upon  such  real 
property  as  the  board  of  estimate  and  apportionment  may  deem  to 
be  benefited  thereby.  In  proceedings  in  which  the  board  of  estimate 
and  apportionment  shall  determine  that  the  compensation,  which 
should  justly  be  made  to  the  owners  of  the  real  property  proposed 
to  be  taken,  shall  be  ascertained  by  three  commissioners  of  estimate 
to  be  appointed  by  the  said  court,  the  city  of  New  York  shall  make 
application,  or  cause  application  to  be  made  to  the  said  court  in  a 
county  within  the  city  of  New  York  and  within  the  judicial  district  in 
which  the  real  property  to  be  acquired  is  situated,  for  the  appoint- 
ments of  three  commissioners  of  estimate  to  ascertain  and  determine 
the  compensation  to  be  made  to  the  owners  of  the  real  property  pro- 
posed to  be  acquired,  and  in  a  proper  case,  for  the  appointment  of 
one  of  the  commissioners  of  estimate  as  a  commissioner  of  assess- 
ment for  the  purpose  of  levying  the  assessment  of  the  cost  of  the 
improvement,  or  such  portion  thereof  as  the  board  of  estimate  and 
apportionment  may  direct  to  be  assessed  upon  such  real  property  as 


STREETS— SETBACKS— TRAFFIC  REGULATIONS          187 

may  be  deemed  by  the  said  board  of  estimate  and  apportionment  to 
be  benefited  thereby.  The  board  of  estimate  and  apportionment  may 
authorize  two  or  more  streets  to  be  included  in  one  proceeding.  The 
moneys  collected  upon  the  assessment  for  benefit  shall  be  paid  into 
the  city  treasury.  The  damages  awarded  as  compensation  shall  be- 
come due  and  payable  immediately  upon  the  entry  of  the  final  decree 
of  the  court,  or  upon  the  entry  of  the  order  confirming  the  report  of 
the  commissioners  of  estimate,  as  the  case  may  be.  In  proceedings 
authorized  by  the  board  of  estimate  and  apportionment  after  the  first 
day  of  January,  nineteen  hundred  and  seventeen,  the  compensation  to 
which  the  owners  of  the  real  property  to  be  acquired  for  the  use  of 
the  public  for  the  purposes  specified  in  this  section,  shall  be  ascer- 
tained and  determined  by  the  supreme  court  without  a  jury  in  the 
manner  and  according  to  the  procedure  prescribed  by  this  title,  and 
on  and  after  said  date  the  city  of  New  York  shall  make  application 
to  the  court,  or  cause  application  to  be  made  to  the  supreme  court  in 
a  county  within  the  city  of  New  York  and  within  the  judicial  district 
in  which  the  real  property  to  be  acquired  is  situated,  to  have  the 
compensation,  which  should  justly  be  made  to  the  respective  owners 
of  the  real  property  proposed  to  be  acquired,  ascertained  and  deter- 
mined by  the  said  court  without  a  jury,  and  to  have  the  cost  of  the 
improvement,  or  such  portion  thereof  as  the  board  of  estimate  and 
apportionment  shall  direct,  assessed  by  the  court  upon  the  real  prop- 
erty deemed  by  the  board  of  estimate  and  apportionment  to  be  bene- 
fited thereby." 

Vesting  of  Title  in  the  City  to  Real  Property  Taken  for  Streets  or 
Parks  or  Other  Purposes 

SEC.  976.  Should  the  board  of  estimate  and  apportionment  at  any 
time  deem  it  for  the  public  interest  that  the  title  to  the  real  property 
required  for  any  improvement,  authorized  herein,  should  be  acquired 
by  the  city  of  New  York  at  a  fixed  or  specified  time,  the  said  board 
of  estimate  and  apportionment  may  direct,  by  a  three-fourths  vote, 
that  upon  the  date  of  the  entry  of  the  order  granting  the  application 
to  condemn  or  upon  the  date  of  the  filing  of  the  oaths  of  the  com- 
missioners of  estimate,  as  the  case  may  be,  as  provided  for  in  this 
title,  or  upon  a  specified  date  after  either,  the  title  to  any  piece  or 
parcel  of  real  property  lying  within  the  lines  of  any  improvement 
herein  authorized,  shall  be  vested  in  the  city  of  New  York.  Upon 
the  date  of  the  entry  of  the  order  granting  the  application  to  con- 
demn, or  upon  the  date  of  the  filing  of  such  oaths,  as  the  case  may 
be,  or  upon  such  subsequent  date  as  may  be  specified  by  said  board, 
the  city  of  New  York  shall  become  and  be  seized  in  fee  of,  or  of 
the  easement,  in,  over,  upon  or  under,  the  said  real  property  described 
in  the  said  resolution,  as  the  board  of  estimate  and  apportionment 


188  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

may  determine,  the  same  to  be  held,  appropriated,  converted  and 
used  to  and  for  such  purpose  accordingly.  In  such  cases  interest  at 
the  legal  rate  upon  the  sum  or  sums  to  which  the  owners  are  justly 
entitled  upon  the  date  of  the  vesting  of  title  in  the  city  of  New  York, 
as  aforesaid,  from  said  date  to  the  date  of  the  final  decree  of  the 
court  or  to  the  date  of  the  report  of  the  commissioners  of  estimate, 
as  the  case  may  be,  shall  be  awarded  by  the  court  or  by  the  com- 
missioners, as  the  case  may  be,  as  part  of  the  compensation  to  which 
such  owners  are  entitled.  In  all  other  cases,  title  as  aforesaid  shall 
vest  in  the  city  of  New  York  upon  the  filing  of  the  final  decree  of 
the  court  or  upon  the  entry  of  the  order  confirming  the  report  of  the 
commissioners  of  estimate,  as  the  case  may  be,  and  the  reversal  on 
appeal  of  the  final  decree  of  the  court  or  of  the  order  of  confirma- 
tion, as  the  case  may  be,  shall  not  divest  the  city  of  title  to  the  real 
property  affected  by  the  appeal.  Upon  the  vesting  of  title  the  city 
of  New  York,  or  any  person  or  persons  acting  under  its  authority, 
may  immediately,  or  any  time  thereafter,  take  possession  of  the  real 
property  so  vested  in  the  city,  or  any  part  or  parts  thereof,  without 
any  suit  or  proceeding  at  law  for  that  purpose.  The  title  acquired 
by  the  city  of  New  York  to  real  property  required  for  a  street  shall 
be  in  trust,  that  the  same  be  appropriated  and  kept  open  for,  or  as 
part  of  a  public  street,  forever,  in  like  manner  as  the  other  streets 
in  the  city  are  and  of  right  ought  to  be.  The  board  of  estimate  and 
apportionment  may,  at  the  time  of  the  adoption  of  the  resolution  insti- 
tuting the  proceeding  in  which  lands  are  to  be  acquired  for  courtyard 
purposes,  determine  whether  the  fee  or  an  easement  shall  be  acquired 
in  lands  required  for  courtyards,  and  it  may  prescribe  such  condi- 
tions and  limitations  on  the  title  so  to  be  acquired  and  as  to  the  tem- 
porary or  permanent  use  of  the  land  so  to  be  acquired  as  it  may  deem. 
proper,  and  the  title  which  the  city  shall  acquire  to  the  lands  required 
for  courtyard  purposes  shall  be  such  as  the  board  of  estimate  and 
apportionment  shall  determine,  and  such  title  shall  be  held  by  the 
city  subject  to  such  limitations  and  conditions  as  to  title  thereto  or 
as  to  the  use  thereof  as  the  board  of  estimate  and  apportionment  shall 
prescribe.  If  not  inconsistent  with  such  limitations  and  conditions 
as  to  title  or  as  to  use,  land  acquired  for  courtyard  purposes  may  be 
devoted  to  general  street  uses  whene'er  the  board  of  estinuitc  <i»</ 
apportionment  shall  determine  that  the  public  interest  requires  such 
use.  If  any  individual  or  corporation  before  the  entry  of  the  order 
granting  the  application  to  condemn  or  before  the  appointment  of 
the  commissioners  of  estimate,  as  the  case  may  be,  has  acquired  by 
private  grant,  prescription  or  otherwise,  any  easement  for  the  pur- 
pose of  laying  or  maintaining  in  the  real  property  to  be  acquired  for 
street  purposes  as  herein  provided,  underground  pipes  or  conduits 
for  the  distribution  of  water,  gas,  steam  or  electricity,  or  for  pneu- 
matic service,  such  easement  shall  not  be  extinguished,  but  the  title  to 


STREETS— SETBACKS— TRAFFIC  REGULATIONS          189 

the  real  property  so  to  be  acquired  for  the  purposes  herein  provided 
for  shall  be  taken  subject  to  such  easement;  provided,  however,  that 
nothing  herein  contained  shall  be  so  construed  as  to  limit  the  power 
of  the  city  of  New  York  to  acquire  by  purchase  or  by  condemnation 
proceedings  the  entire  plant  or  service  of  such  individual  or  corpora- 
tion, or  to  acquire  such  easement  in  such  street  in  any  other  appro- 
priate proceedings.  The  title  in  fee  acquired  by  the  city  of  New 
York  to  real  property  required  for  all  purposes  provided  for  in  this 
title,  except  street  and  courtyard  purposes,  shall  be  a  fee  simple 
absolute. 


PART  IV 
PLANNING  THE   PRIVATE   FEATURES 

CHAPTER  I 

THE   PRINCIPLE   OF   BUILDING   REGULATION 
AND  ZONING 

Building  Regulation. — Building  regulation  may  be 
roughly  divided  into  three  classes :  Structural  requirements, 
regulation  of  the  bulk  of  buildings  and  other  structures,  and 
regulation  of  the  uses  for  which  they  may  be  erected,  or  to 
which,  when  already  in  existence,  they  may  be  put  in  various 
parts  of  a  locality.  In  connection  with  the  regulation  of  the 
use  of  structures  on  land  may  conveniently  be  considered  analo- 
gous uses  of  land  without  structures  on  it,  as,  for  instance,  for 
the  conduct  of  the  junk  or  lumber  business  or  for  the  parking 
of  taxicabs  for  immediate  call.  The  expression  "structural  re- 
quirements" here  used,  means  those  other  than  of  bulk. 

Building  regulations  may  be  the  same  for  all  structures,  or 
all  of  the  same  class,  throughout  the  entire  city  or  other  admin- 
istrative unit,  or  they  may  vary  in  the  various  parts  of  that 
unit.  In  the  latter  case  they  are  called  zone  regulations.  Use 
regulations,  however,  being  intended  to  confine  buildings  em- 
ployed for  certain  purposes  to  certain  parts  of  a  city,  are  neces- 
sarily zoning  regulations.1 

Retroactive  Regulations. — Building  regulations  are  not 
as  a  rule  so  drawn  as  to  be  retroactive.2  Existing  buildings 

1  Regulations  with  regard  to  the  construction  of  buildings  of  a  cer- 
tain class,  throughout  the  city,  for  a  given  use,  do  not  vary  the  character 
of  the  different  sections  of  the  city  one  from  the  other  and  are  not  in 
this  connection  classified  as  use,  but  as  structural  regulations. 

'*The  zone  regulations  of  Los  Angeles  are  a  notable  exception;  see 
p.  267. 

191 


192  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

and  existing  uses  in  them  are  rarely  disturbed.  At  long  inter- 
vals, as  standards  advance,  minimum  requirements  for  the 
occupancy  of  dwellings  may  be  increased  somewhat,  and  the 
employment  of  some  of  the  worst  apartments  for  living  pur- 
poses forbidden  until  they  have  been  altered  to  conform  to 
the  new  regulations.  For  the  most  part,  however,  it  is  the  bulk 
of  future  structures  in  different  sections  of  the  city  (including 
additions  to  and  alterations  of  present  or  future  erections)  and 
the  uses  to  which  existing  structures  shall  be  put  and  future 
structures  devoted,  that  is  regulated.  The  main  purpose  and 
effect  of  such  regulations,  therefore,  is  to  prevent  the  beginning, 
aggravation  and  spread  of  undesirable  conditions,  not  to  cure 
them  when  already  in  existence.8 

Structural  Regulations. — Building  operations  in  a  mod- 
ern city  are  almost  invariably  governed  by  regulations  enacted 
for  the  purpose  of  guarding  against  flimsy  construction,  secur- 
ing sanitation,  etc.  These  regulations  are  usually  contained  in 
a  building  code,  so  called,  and  constitute  the  bulk  of  it.  With 
these  rules,  in  so  far  as  their  tendency  is  to  secure  these  results, 
this  inquiry  cannot  deal ;  for  to  do  so  would  only  lead  too  far 
afield  and  involve  detailed  discussion  of  matters  technical  in 
their  nature  and  better  treated  in  other  connections.  Often, 
however,  structural  provisions  do  affect  materially  the  city 
plan,  and  sometimes  are  passed  for  the  purpose.  A  favorite 
means  in  many  communities  of  excluding  the  "three  decker" 
(i.  e.,  the  three  story  tenement  house,  with  an  apartment  to 
the  floor,  often  covering  an  undue  percentage  of  the  lot)  is  to 
make  the  requirements  for  it  so  expensive  that  it  cannot  be  built 
at  a  profit.  The  New  York  City  tenement  house  law,  passed 
in  1901,  provided  that  all  tenements  over  six  stories  in  height 
should  be  fire  proof,  and  later  amendments  have  made  the  six 
story  building  proportionately  more  expensive  than  the  five 
story  structure.4  Chicago  has  for  many  years  required  all 

*  See.  however,  p.  200  with  regard  to  non-conforming  bulks  and  uses 
and   their  treatment. 

*  Originally  Laws   1901,  ch.  334,  sec.   n;  now  Tenement   House  Law, 
Laws  1909,  ch.  99,  sec.  15,  renumbered  by  Laws  1913,  ch.  551,  sec.  2,  to 
be  sec.  14.     See  also  same,  sec.  24,  Laws  1909,  ch.  99,  as  amended,  Laws 
1913,  ch.  551  and  Laws    1919,  ch.  648. 


PRINCIPLE  OF  BUILDING  REGULATION  AND  ZONING    193 

tenements  over  three  stories  to  be  of  fire  proof  material.5  The 
result  is  that  in  Manhattan  and  other  parts  of  the  city,  New 
York  is  prevailingly  a  city  of  six  or  five  story  residences,  while 
in  Chicago  the  three  story  type  is  the  predominant  one.  At 
the  time  these  fire  proofing  regulations  were  passed,  a  plain 
height  limit  prescribing  such  a  maximum  would  have  been 
difficult  of  enactment. 

Bulk  Regulations. — The  principal  purpose  of  bulk  regu- 
lations 6  is  to  guard  against  undue  concentration.  In  form  they 
are  rules  fixing  maxima  which  structures  shall  not  exceed.  A 
measure  of  concentration  in  these  communities  is,  on  the  whole, 
desirable.  A  city  is  the  result  of  the  division  of  labor,  one  of 
the  consequences  of  which  is  the  specialized  use  of  land.  Spe- 
cialization is  utilization  to  the  greatest  advantage.  In  the  coun- 
try the  raw  material  is  produced  and  extracted ;  in  the  city  it  is 
manufactured  and  exchanged.  Manufacture  and  exchange 
require  more  frequent  and  quicker  contacts  than  production 
and  extraction;  and  therefore  city  land  is  employed  more  inten- 
sively and  is  more  productive  and  valuable. 

But  the  tendency  of  concentration  is  to  increase.  More 
intensive  use  augments  the  return  from  a  given  area  of  land; 
this  adds  to  its  value;  and  in  the  endeavor  to  obtain  a  return 
proportionate  to  this  greater  value  the  use  is  made  still  more 
intensive,  and  so  on  in  the  vicious  circle.  Thus  undue  concen- 
tration becomes  congestion,  clogging  movement  instead  of 
facilitating  it,  to  the  injury  not  only  of  business  and  industry 
but  of  living  conditions  as  well.  The  public  and  semi-public 
features  of  a  city — its  streets,  transit  facilities,  sewers,  parks, 
etc. — are  of  necessity  planned  and  constructed  for  a  certain 
intensity  of  use.  It  is  mainly  the  bulk  of  the  structures  of  the 
city  that  are  privately  owned  and  used — the  houses  where  the 
people  live  and  the  stores  and  factories  where  they  work — that 
determines  the  amount  of  use  to  which  these  public  facilities  are 
subjected.  If  these  public  features — except  as  a  necessary 

8  The  provision  is  now  to  be  found  in  the  Chicago  Code,  Callaghan 
and  Co.,  Chicago,  1911,  sec.  450. 

"For  a  recent  article  on  height  regulation,  see  "Restrictions  Govern- 
ing City  Development"  in  the  (English)  Town  Planning  Review  for 
July,  1921. 


iy4  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

provision  for  the  city's  growth — are  made  bigger  than  is  needed 
for  the  use  to  which  they  are  put,  there  is  a  waste  of  equipment. 
Of  this  the  unnecessarily  broad  street,  paved  at  great  expense 
to  its  entire  breadth,  is  a  glaring  example.  If,  however,  by  the 
unrestricted  increase  in  the  bulk  of  buildings  and  the  resulting 
growth  in  traffic  these  public  and  semi-public  features  are 
allowed  to  become  inadequate,  there  is  dislocation,  confusion, 
constriction  and  the  heavy  losses  they  necessarily  entail.  The 
hopeless  congestion  of  people  and  traffic  in  lower  New  York 
City  and  in  the  Loop  in  Chicago,  and  the  condition  of  those  who 
must  work  there,  are  only  extreme  illustrations  of  what  exists  in 
many  of  our  cities.  It  has  been  calculated  that,  even  if  all 
traffic  were  removed,  many  of  the  streets  and  sidewalks  of 
lower  New  York  would  hold  only  from  96.3  to  37.5  per  cent 
of  the  occupants  of  its  buildings,7  and  that  to  take  the  inmates 
of  one  of  them  to  their  homes  alone  taxes  the  subway  to  its 
capacity  for  half  an  hour.  In  some  of  these  streets  the  light 
is  so  obstructed  by  tall  buildings  that  artificial  light  is  necessary 
even  in  the  space  nearest  the  window,  for  most  of  the  frontage, 
on  a  sunny  day  in  midsummer.  Except  in  rare  instances  the 
public  features  of  a  city,  once  planned  and  constructed,  can- 
not be  greatly  augmented — the  expense  is  prohibitive — and  to 
keep  pace  with  the  demands  of  unrestrained  private  growth  is 
manifestly  impossible. 

Nor  is  the  balance  between  private  buildings  and  public  fea- 
tures the  only  one  that  must  be  maintained  by  restricting  the 
mass  of  private  structures.  Every  building — whether  a  resi- 
dence, a  store  or  a  factory — in  which  human  beings  remain 
for  any  considerable  time,  requires  a  certain  amount  of  open 
space  appurtenant  to  it,  to  furnish  access  of  light  and  air. 
Direct  sun  light  is  also  most  valuable.  This  need  the  public 
street  supplies  only  partially,  the  supply  from  this  source  be- 
coming more  and  more  inadequate  as  the  city  grows.  The  bulk 

TFor  the  facts  mentioned  in  this  chapter  showing  the  evils  resulting 
from  the  lack  of  regulation,  see  generally  the  Report  of  the  Heights  of 
Building  Commission,  New  York  City,  December  23,  1913,  and  the  Final 
Report  of  the  Commission  on  Building  Districts  and  Restrictions,  New 
York  City,  June  2,  1916.  Similar  facts  may  he  found  in  must  of  the 
many  reports  of  cities  in  this  country  on  zoning  since  1916. 


PRINCIPLE  OF  BUILDING  REGULATION  AND  ZONING    19$ 

of  buildings  must,  therefore,  be  regulated  with  relation  to  the 
lots  on  which  they  stand  or  an  increase  in  fire  hazard,  anaemia, 
disease,  accidents — especially  to  children  playing  in  the  streets 
— and  juvenile  delinquency,  inevitably  follows. 

The  tendency  of  decreased  usefulness  is  to  lessen  values  in 
land,  as  in  other  commodities.  This  is  seen  in  the  deterioration 
of  certain  neighborhoods,  and  the  growth  of  slums  in  others,  as 
congestion  increases.  This  effect,  however,  is  not  necessarily 
felt  by  the  land  owner  in  many  parts  of  central  city  areas.  The 
reason  for  this  is  partly  that  other  causes  are  usually  at  work 
tending  to  add  to  these  values  and  congestion  only  retards  this 
increase;  partly  that  the  land  owner,  under  our  system,  shifts 
the  loss  to  the  city  as  a  whole,  which  pays  it  in  augmented 
expenses,  costly  improvements  such  as  street  widenings,  the 
relocation  and  enlargement  of  sewers  and  the  increase  and  ex- 
tension of  all  the  public  utilities.  High  land  values,  too,  in  a 
congested  city  are  confined  to  a  small  section,  to  the  loss  of  land 
owners  generally. 

The  Tall  Building. — To  the  larger  cities  of  this  coun- 
try 8  the  tall  building,  since  the  invention  of  steel  construction 
has  made  it  possible,  has  become  a  peril.  This  is  especially  true 
of  the  very  large  city. 

Almost  universally  the  tall  building  must  be  fire  proof  and 
have  special  fire  fighting  apparatus  to  lift  water  beyond  the 
effective  reach  of  the  regular  system.  Nevertheless  these  build- 
ings present  special  fire  perils.  The  rooms  in  them  are  usually 
filled  with  highly  inflammable  material ;  the  elevator  wells  serve 
as  vast  flues  to  draw  the  fire  upward;  the  difficulty  of  reaching 
the  ground  in  case  of  panic  is  great ;  often  the  streets  would  be 
too  small  to  hold  the  number  of  people  who  would  be  forced  to 
escape  from  the  buildings. 

In  a  district  of  tall  buildings  there  is  sure  to  be  an  insuffi- 

8  And  in  Canada :  Witness,  Thomas  Adams,  Town  Planning  Adviser, 
Canadian  Commission  of  Conservation,  who  says  (in  The  American  City, 
July,  1918,  p.  3)  : 

"In  our  Canadian  cities  the  sky-scraper  is  the  stepbrother  to  the 
vacant  lot;  only  that  for  every  sky-scraper  there  are  probably  a  hun- 
dred or  more  vacant  lots.  This  is  an  unhealthy  and  uneconomic  condi- 
tion and  is  causing  us  to  try  to  get  a  more  even  and  less  scattered  form 
of  development  by  restricting  the  use  of  the  height  of  buildings." 


lg6  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

cient  supply  of  light  and  air  in  all  but  the  rooms  on  the  upper 
floors.  Frequently,  too,  in  normal  times  the  tall  building  does 
not  pay ;  for,  proportionately,  the  construction  must  be  heavier, 
the  expense  and  waste  of  space  for  elevators  is  much  increased, 
and  poor  light  and  air  on  the  lower  floors  cause  lower  rents  and 
a  higher  percentage  of  vacancies.  Most  of  the  exceptions  are 
buildings  not  yet  surrounded  with  other  tall  buildings;  for  to 
succeed  the  tall  building  must,  almost  invariably,  appropriate 
without  payment  the  light  and  air  of  many  neighboring  land 
owners. 

It  was  suggested  at  the  time  the  New  York  City  zoning 
ordinance  was  being  formulated  that  no  land  owner  should  be 
permitted,  except  on  payment  to  his  neighbor  for  the  privilege, 
to  open  windows  giving  on  neighboring  land  unless  sufficiently 
distant  from  it  to  allow  a  reasonable  access  of  light  and  air 
over  his  own  land.  This  was  proposed  not  so  much  in  justice 
to  the  neighboring  lot  as  to  insure  the  supply  of  light  and  air 
for  the  lot  itself.  Buildings  on  the  lot  line  often  rent  well  for 
a  while,  and  even  sell  well  as  a  speculation;  but  ultimately 
become  not  only  unprofitable  but  undesirable  for  the  commu- 
nity. The  suggestion,  however,  was  not  adopted. 

Great  as  is  the  peril  to  the  community  of  the  tall  building  if 
its  unregulated  construction  continues,  it  is  nowhere  yet  beyond 
control.  In  New  York  City  the  narrowness  of  Manhattan  has 
been  supposed  to  make  the  tall  building  necessary,  although  in 
fact  there  is  much  land  even  at  the  lower  end  of  the  island  which 
could  be  improved  and  more  intensively  developed.  Even  in 
Manhattan,  where  there  are  more  tall  buildings  than  anywhere 
else  in  the  world,  the  average  building  height  was  in  1916  only 
4.8  stories,  and  the  buildings  over  ten  stories  in  height  consti- 
tuted only  a  little  over  one  per  cent  of  the  total.  Grouped  as 
sky  scrapers  are  in  New  York  City,  zoning  should  control  their 
spread ;  and  zoning  would  seem  the  only  way  to  accomplish  this 
result. 

Another  effect  of  the  unrestricted  construction  of  tall  build- 
ings is  the  fluctuation  in  the  character  and  intensity  in  the  em- 
ployment of  land  which  their  mere  bulk  causes.  A  tall  loft 
building,  for  light  manufacturing,  erected  on  Fifth  Avenue  in 


PRINCIPLE  OF  BUILDING  REGULATION  AND  ZONING    197 

New  York  City,  empties  a  considerable  district  in  the  neigh- 
borhood of  23rd  Street  or  City  Hall,  and  fills  a  high  class 
shopping  district  with  industry,  to  the  great  injury  of  real 
estate  values  in  both  districts. 

Classes  of  Bulk  Regulation. — Bulk  regulations  may  be 
divided  into  limitations  of  the  height  and  limitations  of  the 
area  of  buildings.  The  fixing  of  the  height  of  buildings  in  this 
way  tends  to  keep  them  from  cutting  off  light  and  air  from 
their  lower  portions  and  from  each  other;  the  limitation  of 
their  area  secures  a  certain  amount  of  open  space  for  the  access 
of  light  and  air  to  these  buildings;  and  both  these  provisions 
tend  to  prevent  the  increase  of  intensity  in  the  use  of  land  and 
the  further  disturbance  of  the  necessary  balance  between  build- 
ings and  public  improvements  and  utilities. 

Height  regulations  limit  the  maximum  height  of  future 
structures  at  a  given  number  of  stories  or  feet  above  the  curb 
or  at  a  height  equal  to  the  width  of  the  street  or  streets  upon 
which  the  building  abuts,  or  that  width  plus  or  minus  a  given 
number  of  feet,  multiplied  by  two,  etc.  Area  regulations  limit 
the  maximum  area  of  structures  either  by  requiring  minimum 
courts  and  yards,  and  perhaps  front,  side  or  rear  setbacks, 
irrespective  of  the  size  of  the  building  or  lot,  or  by  fixing  the 
maximum  area  of  the  structure  at  a  percentage  of  the  lot. 
Sometimes  the  area  requirements  are  made  to  vary  with  the 
height  of  the  building.  These  regulations  of  height  and  area 
may  be  the  same  for  all  buildings,  or  may  be  specially  adapted 
and  applied  to  certain  classes  of  buildings,  such  as  tenements  or 
factories. 

Zoning. — Zoning  9  is  planning  with  relation  to  the  differ- 
ences, existing  and  potential,  between  the  parts  of  cities.  Like 
city  and  country  development  it  is  a  recognition  and  a  result 
of  the  tendency  toward  specialization  in  the  use  of  land.  If  this 
specialization  stopped  at  the  city  line  and,  once  inside  it,  all  land 

*  Thomas  Adams,  the  Town  Planning  Advisor  of  the  Commission  of 
Conservation,  Canada,  in  Garden  Cities  and  To'wn  Planning  for  August, 
1921,  and  also  in  The  American  City  for  September,  1921,  criticises  the 
use  of  this  word  and  suggests  the  employment  of  other  expressions  in 
some  cases;  but,  in  all  probability,  it  is,  in  this  country  at  least,  too  late 
to  change. 


198  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

were  employed  indiscriminately  for  the  same  general  purpose, 
the  same  building  regulations  could  be  applied  throughout  the 
city.  The  same  forces,  however,  are  at  work  within  the  city, 
acting  more  vigorously  in  the  more  limited  area,  and,  there- 
fore, producing  more  numerous  and  sharper  differentiations. 
Thus  there  are  the  concentrated  centers,  the  less  intensively 
built  outer  sections  and  the  sections  where  the  land  is  prac- 
tically undeveloped;  with  a  tendency  toward  congestion  in  all 
the  built  up  parts  of  the  city  and  the  city  as  a  whole ;  the  city 
being  also  divided  into  residential,  business  and  manufacturing 
sections,  more  or  less  distinct  and  suited  to  the  city's  needs,  and 
undeveloped  land  with  potentialities  which  should  not  be  dis- 
regarded. It  is  only  by  bulk  and  use  regulations  varied  to  suit 
the  character  of  these  various  districts  that  they  and  the  city 
as  a  whole  can  be  planned  to  the  best  advantage  and  the  greatest 
usefulness. 

Bulk  Zoning. — With  the  growing  employment  of  the 
bulk  regulation  of  buildings  to  prevent  the  growth  and  spread 
of  congestion  in  cities,  has  come  the  recognition  of  the  fact 
that  it  is  not  only  undesirable  but  practically  impossible  to  enact 
adequate  bulk  regulations  that  shall  be  the  same  for  all  parts 
of  the  city. 

In  all  cities  there  are  districts  where  there  is  great  concen- 
tration, and  values  have  adapted  themselves  to  these  conditions. 
To  pass  regulations  securing  for  these  districts  sufficient  light 
and  air  would  be  a  practical  confiscation  of  a  considerable  por- 
tion of  land  values  there.  On  the  other  hand,  any  regulation 
that  would  be  fair  to  these  congested  districts  would  be  so 
liberal  as  to  be  practically  inoperative  in  large  sections  of  the 
city,  where  present  structures  and  values  neither  demand  nor 
warrant  such  intensity,  and  would  allow  in  them  a  gradual 
approach  to  the  conditions  in  the  most  concentrated  parts  of 
the  city.  Zoning  by  bulk  is,  therefore,  the  only  practical  method 
of  preventing  the  spread  of  congestion  throughout  a  city  and 
checking  its  increase  in  the  city  as  a  whole. 

Use  Zoning. — The  prevention  of  the  increase  and  spread 
of  congestion  is  not  the  sole  object  of  zoning.  This  method 
of  building  regulation  is  also  the  only  means  by  which  there 


PRINCIPLE  OF  BUILDING  REGULATION  AND  ZONING    199 

can  be  obtained  that  specialization  in  the  use  of  city  land  essen- 
tial to  its  most  economical  and  efficient  employment  and  its 
highest  value.  To  attain  such  specialization  is  one  of  the  pur- 
poses of  zoning  by  bulk,  permitting  differences  in  intensity  of 
development  in  different  parts  of  the  city;  and  is  the  sole  pur- 
pose of  zoning  by  use. 

By  natural  location  and  by  location  with  relation  to  public 
utilities  and  development  generally,  much  of  the  land  within  a 
city  is  specially  fitted  for  certain  uses,  and  is  often  chosen  for 
them.  Thus  heavy  industry  seeks  the  water  front  and  the  rail- 
way, the  better  class  residences  are  for  the  most  part  located 
remote  from  industry  and  not  too  near  business,  and  working- 
men's  houses,  in  the  neighborhood  of  their  work  or  near  transit 
lines  that  will  bring  them  cheaply  and  quickly  to  it. 

But  location  is  not  the  only  essential  to  the  best  use  of  land. 
A  section  of  the  city  suitable  for  residence,  for  instance,  is  often 
injured  for  that  purpose  by  the  intrusion  of  a  certain  class  of 
factory,  with  its  attendant  smoke,  noise  and  odors;  and  also, 
if  a  high  class  residence  section,  by  the  coming  of  business,  or 
even  of  the  tenement  house.  When  industry  or  business  is  best 
suited  to  a  district,  and  land  will  sell  higher  for  such  purposes 
than  for  any  other,  the  locality  is  bound  to  be  transformed  and 
nothing  can  be  done,  or  should  be  attempted,  to  prevent  it.  But 
intrusion  often  occurs  where  this  is  not  the  fact.  Cases  are 
common  in  all  cities  where  a  single  factory  has  invaded  a  resi- 
dence street  for  some  more  or  less  accidental  reason  and  no 
others  have  seen  any  advantage  in  following.  A  slump  in  land 
values  has  been  the  result,  the  locality  being  no  longer  peculiarly 
desirable  either  for  industry  or  for  residence,  the  houses  being 
put  to  uses  to  which  they  were  ill  adapted,  or  changed  over,  or 
left  vacant,  to  the  loss  of  the  owners  and  the  community.  This 
is  one  of  the  common  causes  of  slums. 

Building  regulation  alone,  without  any  special  natural  fit- 
ness for  a  given  special  use,  is  in  many  cases  sufficient  to  adapt 
a  locality  to  that  use,  and  raise  its  land  values.  Often  land  in 
many  parts  of  a  city  is  reasonably  well  suited  for  residential 
purposes  if  only  buildings  offensive  to  residents  are  kept  away. 
Still  more  frequently  regulation  is  essential  to  preserve  the 


200  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

best  usefulness  of  a  district  and  values  there.  Again,  a  dis- 
trict devoted  to  a  given  purpose  can  be  improved  when  this 
would  not  be  possible  in  a  district  of  a  mixed  character.  For 
instance,  it  would  pay  to  lay  out  parks,  parkways  and  play- 
grounds in  a  district  exclusively  and  permanently  residential, 
or  to  lay  down  special  pavements  in  a  district  similarly  devoted 
to  heavy  manufacture,  so  as  to  facilitate  the  transportation  of 
heavy  loads,  when  this  could  not  be  done  so  profitably  or  to 
anything  like  the  same  extent  in  the  entire  city  or  any  chance 
section  of  it.  Zoning  also  prevents  premature  change  in  the 
character  of  a  district,  which  is  always  a  source  of  waste  and 
loss.  Thus  where  a  factory  obtrudes  itself,  not  necessarily  into 
a  wrong  district,  but  into  a  district  long  before  other  factories 
are  ready  to  follow,  the  private  houses  in  the  district  remain, 
of  less  utility  and  with  lowered  rents,  if  not  vacant,  until  it  is  of 
advantage  to  the  owner  to  replace  them.  Under  a  system  of 
use  zoning  the  district  would  remain  entirely  residential  until 
there  was  a  real  need  for  beginning  its  immediate  transforma- 
tion into  an  industrial  district,  and  the  losses  incidental  to  the 
change  minimized. 

Racial  Zoning. — In  all  countries  people  of  the  same  race 
tend  to  live  in  the  same  locality.  As  a  result,  large  cities  have 
their  well  defined  Italian,  Jewish,  Syrian,  Chinese,  negro,  and 
other  quarters.  Often  the  growth  or  change  of  districts  in- 
habited by  members  of  a  race  considered  inferior,  like  the 
Chinese  or  negroes,  or  the  desire  of  some  of  its  members  for 
betterment,  brings  them  into  contact  with  other  peoples  in 
the  same  block  or  multiple  dwelling.  This  invasion  of  the 
inferior  produces  more  or  less  discomfort  and  disorder,  and 
has  a  distinct  tendency  to  lower  property  values.  As  a  result 
zoning  on  race  lines  has  been  attempted  in  various  parts  of 
our  Southern  States,  where  negroes  are  most  numerous.  Such 
zoning  in  this  country,  however,  is  illegal,  and  has  never  been 
attempted  as  a  part  of  the  zoning  of  any  other  country. 

Nonconformity. — A  factor  in  building  regulation,  making 
a  satisfactory  solution  of  the  problem  in  the  built  up  parts  of 
cities  impossible  except  by  zoning,  and  difficult  even  with  its 
aid,  is  the  structure,  to  be  found  in  large  numbers  in  all  such 


PRINCIPLE  OF  BUILDING  REGULATION  AND  ZONING   201 

sections,  which  in  bulk  and  in  the  use  for  which  it  is  employed 
does  not  conform  to  the  standards  which  should  be  established 
for  the  section  in  which  it  is  situated.  Thus  in  the  "schemes" 
for  planning  and  zoning  under  the  English  act  of  1909  and 
1919,  for  which — as  is  generally  the  case — tracts  of  practically 
unimproved  land  are  chosen,10  and  in  German  planning,  in  so 
far  as  it  consists  of  "enlargement"  plans  for  the  extension  into 
the  open  country  of  the  city,  solidly  built  up  to  its  very  edge, 
few  if  any  structures  are  found,  and  in  all  probability  such  as 
there  are  will  not  occasion  any  difficulty;  and  the  same  is  true 
in  a  lesser  measure  in  the  planning,  as  yet  all  too  infrequent,  of 
the  outlying  sections  of  cities  and  smaller  localities  in  this  coun- 
try. In  the  zoning  of  the  existing  parts  of  cities,  however,  it 
is  too  late  to  escape  the  nonconforming  structure.  In  a  few  of 
our  cities,  as  for  instance  Los  Angeles,  certain  nonconform- 
ing industries  are  required  to  remove  from  the  district  created, 
or  to  cease  operations;  and,  applied  as  it  was  in  these  cases  to 
more  or  less  offensive  activities,  this  requirement  has  been  sus- 
tained by  our  courts.11  It  is  not  likely,  however,  that  retro- 
active regulations  of  this  sort  would  be  held  to  be  legal  with 
relation  to  all  the  many  kinds  of  nonconforming  structures 
encountered  in  the  completer  zoning  plans  now  becoming  com- 
mon in  this  country;  and  in  any  event  such  regulations  are 
generally  regarded  as  unduly  harsh  and  would  almost  certainly 
stand  in  the  way  of  the  adoption  of  any  plan  of  which  they 
formed  a  part.  Technical  nonconformity  may  be  avoided  by 
making  small  districts  for  it  whenever  it  occurs.  This,  how- 
ever, is  not  a  solution,  but  an  evasion,  of  the  problem.  The 
structure  is  still  where  it  was  before,  unaltered,  and  as  much 
out  of  harmony  with  its  surroundings  as  ever;  whereas,  al- 
though its  existence  must  be  accepted  as  a  factor  in  zoning 
which  cannot  be  ignored,  it  should  be  allowed  to  interfere  with 
that  zoning  as  little  as  possible.  In  order  to  reach  a  decision 
how  best  to  accomplish  this  result,  a  brief  examination  of 
zoning  methods  is  essential. 

The  Method  of  Dealing   with    Nonconformity. — The 

"These  acts  are  given  practically  in  full  on  p.  518. 
11  See  p.  208. 


202  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

first  step  in  the  zoning  of  a  city  is  a  survey,  the  purpose  of 
which  is  to  ascertain  the  character  of  its  various  sections.  The 
elements  of  this  neighborhood  character  are:  first,  what  may 
be  called  the  character,  natural  and  acquired,  of  the  land — 
whether  elevated  or  low,  inland  or  on  the  shore,  near  or  remote 
from  parks,  railroads,  the  city  center,  etc. — and  second  the 
character  in  bulk  and  in  use,  of  the  structures  on  the  land. 
It  is  on  the  basis  of  this  character  of  the  locality  that  the  regu- 
lations for  it  are  drawn  up  and  the  exact  boundaries  of  the 
districts  in  it  fixed.  Seldom  if  ever  can  the  desired  rules  be 
applied,  in  the  built  up  portions  of  the  city,  without  encounter- 
ing the  alien  structure.  The  regulation  and  the  boundaries 
of  the  district  must,  therefore,  be  based  upon  the  prevailing 
character  of  the  district.  Evidently  the  continued  existence  of 
structures  as  aliens  in  such  districts  is  opposed  to  the  general 
interests  in  furtherance  of  which  the  restrictions  for  the  dis- 
tricts were  adopted,  and  is  permitted  only  in  so  far  as  a  due 
regard  to  the  special  interests  of  those  concerned  with  that 
structure  demand ;  subject  to  which  special  interests,  the  struc- 
ture should  be  reduced  to  conformity  as  completely  and  as 
speedily  as  possible.  The  accepted  method  of  accomplishing 
this  result  is  as  follows :  The  nonconformity  is  in  no  case  al- 
lowed to  increase.12  It  is  permitted  to  continue  until  some 
change  in  the  premises  is  contemplated  by  the  owner,  when,  in 
so  far  as  expedient,  the  authorities  take  advantage  of  this  fact 
to  compel  a  lessening  or  complete  suppression  of  the  noncon- 
formity. 

Nonconforming  Bulks. — Nonconformity  may  be  either  of 
the  bulk  of  the  structure  in  question,  or  of  the  use  to  which  it 
is  put.  Of  the  two,  nonconformity  of  bulk  is  much  the  sim- 
pler problem.13  The  present  structure  must,  of  course,  remain 
in  its  present  bulk ;  but  neither  noncon forming  additions  to  it 
nor  a  lessening  of  the  open  space  appurtenant  to  it,  tinder  the 
requirements  of  the  district  in  which  it  is  situated,  should  be 

u  In  a  few  ordinances,  some  increase  is  allowed  in  certain  cases,  but 
most  ordinances  maintain  this  standard. 

M  So  much  so  that  it  is  n»t  usually  provided  f»r,  in  zoning  ordi- 
nances, under  this  head,  but  is  treated  incidentally,  in  some  other  part 
of  the  ordinance. 


PRINCIPLE  OF  BUILDING  REGULATION  AND  ZONING    203 

tolerated.  The  owner  should  be  allowed  (in  so  far,  at  least,  as 
bulk  rules  are  concerned)  to  alter  his  building;  for  alterations 
are  usually  improvements  which  benefit  the  community;  but  in 
order  that  full  liberty  may  not  be  accorded  in  this  way  to  renew 
the  structure  again  and  again  in  its  original  bulk,  such  altera- 
tions should  not  exceed  in  value  a  certain  percentage  of  the 
value  of  the  original  building.  New  construction  on  old  build- 
ings in  a  given  locality  may,  of  course,  differ  greatly  from  old 
construction  in  cost  per  unit  and  therefore  in  bulk  in  propor- 
tion to  value ;  but  this  is  not  usually  the  case. 

So,  too,  if  the  building  is  accidentally  damaged,  the  owner 
should  be  given  the  right  to  make  repairs;  but  if  the  damage 
exceeds  a  certain  percentage  of  the  value  of  the  structure,  it 
may,  and  should,  in  the  interest  of  conformity,  be  treated  as  if 
entirely  destroyed;  and  the  completely  or  virtually  new  build- 
Ing  be  required  to  be  in  accordance  with  the  bulk  rules  of  the 
district,  like  any  other  new  building.  Where  this  policy  is 
followed  the  percentage  fixed  is  from  50  to  75  per  cent  of  the 
value  of  the  building,  or  the  building  exclusive  of  its  founda- 
tions. Some  ordinances,  however,  allow  alteration  and  recon- 
struction to  the  old  bulk  without  limit. 

Nonconforming  Uses. — The  difficult  problem  is  that  of 
the  nonconforming  use.  The  aim  as  before  is  to  obtain  as 
quickly  as  possible  the  suppression,  or  if  this  be  not  feasible,  the 
greatest  possible  amelioration  of  the  offending  use  which  jus- 
tice to  that  use  permits.  None  of  the  modern  ordinances  ven- 
ture to  confine  the  nonconforming  use  to  its  original  extent, 
requiring  conformity  as  the  price  of  any  change  in  it  or  the 
premises  where  it  exists ;  but  many  of  them  provide  that : 

1.  A  nonconforming  use  existing  at  the  time  of  the  pas- 
sage of  the  ordinance,  in  a  part  of  a  building  or  on  a  part  of 
the  lot,  shall  not  be  extended  at  the  expense  of  a  conforming 
use. 

2.  In   the   interest   of   conformity  uses   are   graded,   no 
change  from  a  higher  to  a  lower  grade  being  permitted ;  the  only 
changes  allowed  being  to  a  use  of  the  same  or  a  higher  grade. 
Thus  under  an  ordinance  with  (i)  residential,   (2)  business, 
(3)  uSnt  industrial,  and  (4)  heavy  industrial,  or  unrestricted, 


204  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

classes  of  districts,  a  business  use  in  a  residential  district  can 
be  changed  only  into  another  business  or  a  residential  use,  a 
light  industrial  use,  only  into  another  light  industrial,  a  busi- 
ness or  a  residential  use,  etc. 

3.  In  the  interest  of  conformity,  among  other  reasons, 
heavy  industrial  uses  are  subdivided  into  certain  named  indus- 
tries, and,  as  the  last  of  the  list,  any  other  industry  noxious  or 
offensive  by  reason  of  the  emission  of  odor,  dust,  smoke  or 
noise.  After  a  single  change  from  one  to  another  noncon form- 
ing use  or  subuse  in  a  given  building,  there  shall  be  no  struc- 
tural changes  in  the  buildings  or  on  the  premises  except  at  the 
price  of  conformity;  after  a  single  structural  change  there  shall 
be  no  change  of  use  or  of  subuse  except  on  the  same  condi- 
tions.14 

"A  few  months  ago  a  "Statement  of  Principles  of  Zoning"  was 
formulated  by  Edward  M.  Bassett,  Esq.,  who  served  as  chairman  of 
the  commissions  that  zoned  New  York  City.  It  was  prepared  for  and 
discussed  at  a  meeting  of  the  American  City  Planning  Institute,  and 
amended  in  the  light  of  that  discussion.  The  Pacific  coast  members 
were  not  present  at  that  meeting  and  do  not  accept  all  the  principles 
of  the  statement ;  the  somewhat  different  point  of  view  and  practice  of 
the  Pacific  coast  in  zoning  should  therefore  be  kept  in  mind  when  con- 
sidering it.  (For  that  point  of  view  see  p.  291  of  this  work.)  Since 
the  statement  was  formulated,  the  decisions  in  favor  of  the  single  family 
house  district,  mentioned  on  p.  288  of  this  work,  have  appeared.  Mr. 
Bassett  does  not  accept  as  correct  in  theory  the  last  five  words  of  the 
statement. 

STATEMENT  OF  PRINCIPLES  OF  ZONING 

(1)  The  subject,  in  relation  to  city  planning,  should  be  called  zoning, 
the  boards,  zoning  boards  or  commissions.     In  laws  and  ordinances  the 
word  zoning  should  be  used  in  the  title  and  the  word  districts  in  the  body 
of  the  law  to  specify  the  areas  affected. 

(2)  Zoning  is   the  creation  by  law  of   districts  in   which   regulations 
differing  in  different  districts  prohibit  injurious  or  unsuitable  structures 
and  uses  of  structures  and  land. 

(3)  Zoning  should  be  done  under  the  police  power  of  the  state  and 
not  by  condemnation. 

(4)  Zoning  by  the  exercise  of  the  police  power  of   the   state  must 
relate  to   the  health,   safety,   morals,   order  and   general   welfare   of   the 
community.     It  follows  therefore  that  police  power  zoning  must  be  con- 
fined to  police  power   reasons  such   as   fire  risk,   lack  of   light   and   air, 
congested   living   quarters   and   other  conditions   inimical   to   the   general 
welfare.      The    preventive    regulations    luscd    on    these    reasons,    which 
necessarily  must   be  applied   differently  and  in  different  measure  in  dif- 
ferent   districts,    naturally    group    themselves    into    zoning    according    to 
use  of   structures  and  land,  according  tn  height  of  building  and  accord- 
ing to   portion   of   lot   covered   by   building.     Zoning   might   go   further 


PRINCIPLE  OF  BUILDING  REGULATION  AND  ZONING    205 

The  Planning  of  Neighborhoods. — The  segregation  of 
similar  bulks  and  uses  and  their  separation  from  alien  struc- 
tures, important  as  it  is,  does  not  constitute  all  of  zoning.  In 
this  branch  of  planning,  as  in  all  the  others,  the  aim  should  be 

and  embrace  the  subjects  of  fire  limits,  setbacks,  and  doubtless  other 
classes  of  regulations.  Enhancement  of  value  alone  or  aesthetics  alone 
has  not  thus  far  been  considered  by  the  courts  to  be  a  sufficient  basis 
for  zoning  when  done  under  the  police  power. 

(5)  Before   enacting  zoning   regulations   a  city  should  have  obtained 
the  power  to  do  so  from  the  state  legislature.     The  essential  statement 
in  such  grant  of  power  is  that  the  city  may  impose  different  regulations 
for  structures  and  for  uses  of  land  and  structures  in  different  districts. 

(6)  Zoning  is  part   of   the   city  plan  and   should   be   applied   to  land 
as  early  as  possible ;  and,  where  practicable,  at  the  time  the  street  lay- 
out is   adopted.     Studies   for  zoning  in  undeveloped  districts  should  be 
accompanied  by  studies  for  at  least  main  and  secondary  thoroughfares. 

(7)  Zoning   when   applied   to   existing  cities    should   be   adapted  gen- 
erally to  existing  conditions  but  should  endeavour  to  check  undesirable 
tendencies. 

(8)  In  the  same  city,  localities  having  substantially  a  like  character 
and  situation  should  be  zoned  in  the  same  manner.     This  principle  should 
prevent  arbitrary,  piecemeal   or  partial   zoning,   which   is   dangerous  and 
may  be  illegal. 

(9)  Zoning  should  be  sufficiently  stable  to  protect  those  who  comply 
with  the  law,  but  at  the  same  time  should  be  susceptible  of  change  by 
municipal  authority  under  strict  checks  prescribed  by  state  law,  so  that 
it  can  be  altered  to  meet  changing  conditions  or  conditions  not  adequately 
recognized. 

(10)  Provision   should  be   made   that   interested    owners    may   initiate 
the  consideration   of   changes,   but   the  actual   application  of   the   zoning 
regulations   to    the   land   and   any   changes   therein   should   rest   with   the 
municipal    authority   and    not    with    the   property   owners.     It    is    a   wise 
expedient  to  require  more  than  a  majority  vote,  or  even  a  unanimous 
vote,  of  the  municipal  authority  to  changes  unless  a  substantial  majority 
of  the  property  owners  affected  thereby  have  given  their  consent  thereto. 

(11)  Zoning    regulations    may   properly   be    supplemented    by    restric- 
tions in  deeds  based  upon  purely  aesthetic  reasons  or  for  the  purpose  of 
creating  a  uniform  residential  development  or  for  other  purposes. 

(12)  Regulations    applicable    to    all    buildings    of    a    class    regardless 
of    location,    such    as    relate    to    plumbing,    strength    of    material,    safety 
devices  or  protection  of  employees  against  fire,  should  not  be  placed  in 
a  zoning  law.     They  are  properly  part  of  a  housing  law,  factory  law  or 
building    law.      Only    those    requirements    which    differ    in    different    dis- 
tricts enter  into  zoning  law. 

(13)  Use    districts    normally    comprise    residence,    business,    light    in- 
dustry and  heavy  industry  districts.     The  kinds  of  industries  prohibited 
in  light  industry  districts  should  be  enumerated.     Residences   should  be 
permitted   in  business   districts   and  both   residences  and  business   should 
be  permitted  in  light  industry  districts.     It  is   a  moot  question  whether 
and  under  what  conditions  residences  should  be  prohibited  in  heavy  in- 
dustry   districts.     Classes    of    use    districts    should    be    few.     The    more 
minute  adaptation  to  local  needs  should  as  a  rule  be  provided  for  in  the 
area  and  height  zoning  and  by  permitting  special  uses  under  conditions 
stated  in  the  ordinance  or  under  the  administration  of  a  board  of  appeals 


206          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

to  unify  the  community.  Attention  has  already  been  called 
to  the  need  of  correlating  the  public  and  private  features  of 
the  city.  It  is  also  necessary  to  relate  the  various  private  fea- 
tures to  each  other.  To  a  considerable  extent  this  may  be  done 

empowered  to  make  building  exceptions.  There  is  lack  of  agreement 
as  to  the  desirability  and  legality  of  prohibiting  apartment  houses,  flats, 
tenement  houses  and  other  multiple  dwellings  in  certain  districts  limited 
to  single  family  dwellings. 

(14)  Where  zoning   regulations   apply  only   to  new   buildings    (as    is 
the  safer  practice)    buildings  occupied   for  non-conforming  uses   should 
be    placed    under    constant    pressure    to    become    conforming,    through 
changes,  with  the  lapse  of  time. 

(a)  Structural  alterations  made  in  a  non-conforming  building  should 
not  during  its  life  exceed  one-half  its  value,  nor  should  the  building  be 
enlarged  unless  its  use  is  changed  to  a  conforming  use. 

(b)  No  non-conforming  use  should  be  extended  by  displacing  a  con- 
forming use. 

(c)  In   a    residence   district   no   non-conforming   building   or   premises 
devoted  to  a  use  permitted  in  a  business  district  should  be  changed  into 
a  use  not  permitted  in  a  business  district. 

(d)  In   a    residence   or   business   district   no   non-conforming   building 
or  premises  devoted  to  a  use  permitted  in  a  light  industry  district  should 
be  changed  into  a  use  not  permitted  in  a  light  industry  district. 

(e)  In    a    residence,    business    or    light    industry    district    no    building 
devoted  to  a  use  excluded  from  a  light  industry  district  should  be  struc- 
turally altered  if  its  use  shall  have  been  changed  since  the  time  of  the 
passage  of  the  ordinance  to  another  use  also  excluded  from  a  light  in- 
dustry district. 

(f)  In    a    residence,    business    or    light    industry    district    no    building 
devoted  to  a  use  excluded  from  a  light  industry  district  should  have  its 
use  changed  to  another  use  which  is  also  excluded  from  a  light  industry 
district  if  the  building  has  been  structurally  altered  since  the  time  of  the 
passage  of  the  ordinance. 

(15)  In    business    and    industry    districts    towers    within   a   prescribed 
height  limit  should  be  permitted  but  should  not  occupy  over  one-quarter 
of  the  lot  area.    They  should  be  allowed  on  the  street  line  all  the  way  up, 
but  should  stand  away  from  side  lines  according  to  a  suitable  rule. 

(16)  Height    limitations    should    be    determined    primarily    by    widths 
of  streets  and  the  use  of  property.     There  should  also  be  flat  maximum 
limitations  irrespective  of  street  widths  which  should  be  fixed  with  due 
regard  to  local  conditions. 

(17)  Included    in    area    limitations    there    should    be    a    provision    f»r 
the   percentage  of  lot  that  can   be  covered  and   a   limitation   of   families 
per  acre  or  of  the  minimum  square  feet  of  lot  area  per  family. 

(18)  There    should    be    an    administrative    board    with    power    under 
state  law. 

(a)  to   rectify  on   appeals   the  errors   of   building   superintendents  in 
passing  on  applications   for   building  permits. 

(b)  to   decide  border  line  and  exceptional  cases  of  buildings  where 
specified  in  the  ordinance. 

(c)  to    vary    the   literal    requirement    of    the   law    in    individual    cases 
of    buildings    where    unnecessary    and    excessive    hardship    is    caused    and 
the  intention  of  the  law  is  equally  accomplished  by  an  alternative  method 
to  be  prescribed. 


PRINCIPLE  OF  BUILDING  REGULATION  AND  ZONING    207 

by  locating  the  different  districts  each  in  its  proper  position 
with  regard  to  the  others  and  to  the  city  as  a  whole.  Evidently 
the  larger  and  more  general  relations,  such  as  that  of  the  low 
priced  housing  district  to  the  manufacturing  district,  and  the 
retail  to  the  wholesale  business  district,  must  be  conserved.  It 
is  also  essential  that  the  smaller  and  more  intimate  relations, 
which  are  so  important  a  part  of  family  life,  should  be  re- 
spected. People  must  live  in  neighborhoods  and  preserve  all 
the  elements  needed  for  neighborly  contact  or  home  life  will 
not  be  economical,  convenient  and  happy.  The  garage,  the 
small  grocery,  the  drug  store,  must  be  within  easy  reach  of 
the  home,  especially  if  it  is  a  modest  one.  In  fixing  the  loca- 
tion, boundaries,  size  and  shape  of  districts,  this  must  not  be 
lost  sight  of.  One  reason  why  the  street  is  such  a  good  dis- 
tricting unit  is  because  it  lends  itself  to  the  creation  and  pres- 
ervation of  these  minor  relations  by  permitting  the  location 
of  distinct  uses  on  different  but  nearby  streets.  Of  late  the 
importance  of  the  neighborhood  building  for  the  cultivation  of 
friendly  relations,  as  well  as  for  pleasure  and  instruction,  has 
been  much  urged.  To  the  neighborhood  group  belong  such 
structures  as  the  church,  the  school,  the  playground  and  the 
minor  public  buildings,  situated  adjacent  to  the  small  local 
park,  so  as  to  form  a  real  neighborhood  center. 

Zoning  and  Land  Values. — Zoning  regulations  are  im- 
posed upon  private  property  under  the  police  power,  without 
compensation.  Obviously  they  restrict,  to  some  extent  at  least, 
the  right  and  power  which  the  owner  of  property  affected  previ- 
ously had  of  dealing  with  it.  Under  our  law  such  regulations 
must,  if  valid,  be  for  the  general  interest.  It  does  not  follow, 
however,  that  they  are  adverse  to  the  interests  of  the  property 
owner,  or  benefit  him  only  generally  as  a  member  of  the  com- 
munity. Regulations  which  adjust  rights  between  property 

Not  only  should  the  powers  of  such  a  board  be  specified  in  the  ordi- 
nance, but  the  state  legislature  should  authorize  the  municipal  authority 
to  create  such  a  board  and  to  provide  in  the  ordinance  what  border  line 
and  exceptional  cases  it  may  decide.  A  larger  vote  than  a  mere  ma- 
jority should  be  required  for  an  affirmative  decision.  Proceedings  and 
records  of  the  board  should  be  public  and  the  members  of  the  board 
should  be  removable  for  cause.  Decisions  of  the  board  should  be  sub- 
ject to  court  review  on  suit  by  any  citizen. 


208  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

• 

owners,  virtually  conferring  rights  as  well  as  taking  them, 
often  increase  the  values  of  the  properties  concerned.  Thus  a 
conservative  height  limit,  lessening  congestion  for  the  good  of 
the  city  as  a  whole,  takes  from  the  property  owner  the  value- 
less right  to  build  to  excessive  height,  and  confers  upon  him 
the  equivalent  of  valuable  easements  of  light  and  air  over  neigh- 
boring land,  of  which  neighboring  buildings  above  the  limit 
would  deprive  him. 

Zoning  rules,  like  all  police  regulations,  may  be  to  the  detri- 
ment of  the  owners  of  the  property  affected,  and  if  sufficiently 
in  the  public  interest  would  no  doubt  be  sustained  by  our 
courts.  Thus  a  requirement  in  a  congested  neighborhood,  that 
buildings  should  not  in  future  exceed  a  certain  height,  would, 
if  essential  to  public  health,  be  upheld  regardless  of  its  results 
on  real  estate  values;  and  the  Supreme  Court  of  the  United 
States  has  already  sustained  a  regulation  compelling  a  nuisance 
industry  to  remove  from  a  residential  neighborhood,  greatly 
to  its  loss.15  Zoning  regulations  which  do  not  raise  values, 
and  even  those  which  lower  them,  may  be  for  the  advantage 
not  only  of  the  community  but  of  the  property  owners  especially 
concerned.  Property  values  are  not  the  only  values.  In  a  resi- 
dential district  of  a  city  where  men  own  their  homes,  the  exclu- 
sion of  business,  even  if  it  lessen  the  selling  price  of  the  houses 
(and  experience  shows  that  this  is  not  usually  the  case),  in- 
creases health  and  comfort,  and  would  without  doubt  give  sat- 
isfaction to  those  concerned,  as  it  might  not  do  in  a  city  where 
only  a  small  percentage  of  homes  were  owned  by  their  occu- 
pants. Nevertheless  it  remains  true  that  in  most  cases  market 
prices  are  a  fairly  accurate  measure  of  social  and  service  values, 
and  that  the  effect  of  zoning  on  the  money  value  of  real  estate 
is  a  matter  of  importance. 

On  principle  it  seems  clear  that  wise  and  conservative  zon- 
ing, except  where  property  values  are  subordinated  to  other 
considerations — as,  without  doubt  in  some  cases  they  should 
be — raises  aggregate  values  and  as  a  rule  values  to  the  indi- 
viduals whose  property  is  subjected  to  it.  The  object  of  use 

"  Kx  parte  Haclacheck,  165  Cal.  416  (1913);  Hadacheck  v.  Sebastian, 
239  U.  S.  394  (1915). 


PRINCIPLE  OF  BUILDING  REGULATION  AND  ZONING    209 

zoning,  in  a  measure  at  least  attainable,  is  to  put  the  land  of 
the  city  to  the  use  to  which  it  is  best  adapted ;  and  such  zoning 
will  normally  increase  total  values.  Normally,  too,  this  will  be 
accomplished,  so  far  as  humanly  and  politically  possible,  by 
devoting  the  land  of  each  individual  owner  to  its  best  use,  thus 
increasing  values  to  him.  Often,  also,  as  has  already  been 
pointed  out,  use  zoning  prevents  waste,  to  the  benefit  of  the 
community  and  the  individual  property  owners.  Inevitably, 
also,  any  reasonable  limitation  on  the  height  and  area  of  build- 
ings will  increase  total  land  values.  The  demand  for  land  for 
a  twelve-story  building  of  given  ground  area  is  only  half  that 
of  two  buildings  each  of  the  same  ground  area  and  each  six 
stories  in  height,  the  cost  of  the  two  six-story  buildings  and 
of  the  twelve-story  structure  would  be  about  the  same;  and  if 
the  six-story  limitation  is  the  right  one  for  the  locality,  the  two 
buildings  would  be  more  useful  and  profitable  than  the  single, 
taller  structure.  Similar  considerations  show  the  result  of 
similar  area  restrictions  to  be  the  same  as  in  the  case  of  height 
regulation. 

In  a  word,  zoning,  by  its  bulk  and  use  prohibitions,  does 
not  prevent  the  construction  of  buildings,  or  lessen  their  value 
or  amount,  but  merely  regulates  their  location;  and,  if  wisely 
done,  increases  their  usefulness.  Inevitably,  therefore,  such 
zoning,  except  in  so  far  as  property  considerations  are  sacri- 
ficed to  more  important  social  demands,  increases  individual 
and  aggregate  money  values  and  returns.  These  conclusions 
are  in  accord  with  experience,  both  abroad  and  in  this  country. 


CHAPTER   II 
ZONING  IN  EUROPE 

Origin  of  Zoning. — Zoning,  although  in  germ  French,1 
was  first  developed  in  Germany,  and  it  is  in  that  country  that 
it  has  been  most  widely  employed.  The  system,  embracing  both 
use  and  bulk  zoning,  began  to  come  into  general  use  in  Ger- 
many about  1894;  and,  like  workmen's  compensation  and  so 
many  other  social  measures,  soon  spread  to  other  lands.  It 
is  now  to  be  found,  in  one  form  or  another,  in  the  principal 
countries  of  Europe  excepting  France,  in  England  and  other 

1  Use  zoning  was  the  first  to  appear.  The  earliest  statement  of  this 
phase  of  the  theory  seems  to  have  been  a  resolution  of  the  German 
Architectural  and  Engineering  Societies,  Richard  Baumeister  and  Franz 
Adickes,  referees,  at  a  meeting  held  in  Berlin,  September  24,  1874;  see 
the  "Deutsche  Bauzeitung"  for  1874,  p.  265-337 '.  an  article  on  "Stadter- 
weiterungen"  by  Adickes  in  the  first  edition  of  Conrad's  "Handu*i>rtcr- 
buch  der  Staatfwissenschaftcn"  (Jena,  1893),  Vol.  5,  p.  847  (1893)  and 
Baumeister's  book,  referred  to  below.  The  first  careful  formulation  of 
the  theory  of  use  zoning  was  by  Baumeister  in  his  book  entitled  "Stadter- 
li'citcruii'jsn  in  technischer,  baupoliseilichcr  und  wirtschaftlichcr  Besie- 
hunfj"  (published  by  Ernst  and  Sons,  Berlin,  1876).  In  that  book,  p. 
84  ff,  he  traces  use  zoning  back  to  the  decree  of  Napoleon  I,  issued  Oc- 
tober 15,  1810,  while  Protector  of  the  Confederation  of  the  Rhine,  to 
be  found  in  the  (French)  Bulletin  des  his  for  1810  (second  half  year), 
P-  397,  being  No.  6059. 

This   decree   provides   that   establishments   which    disseminate   an   un- 
healthy or  unpleasant  odor  shalj  be  erected  only  on  administrative  license. 
It  divides  such  establishments  into  three  classes  of  which  the  first  shall 
not  be  erected  near  a  human  habitation,  their  exact  location  and  distance 
from  residences  to  be  fixed  by  the  administrative  authorities.     This  de- 
cree formed  the  basis  of  the  Prussian  law   (Allgemeine  Gewerbeordnung, 
passed  January  17,   1845,  Gesetz  Sammlung,  1845,  Nr.  2541)  on  this  sub- 
aid  this  law  was  in  substance  followed  by  the  North  German  Con- 
federation in  its  industrial  law  or  "Gewerbeordnunft"  of  June  21,   1869, 
Bundes-Ges.   Bl.,   1869,  Nr-  312,  which  was  the  foundation   for  the  pro- 
visions of  the  law  of  the  German  Empire  on  the  same  subject,  the  well- 
known    "Rdduoewerbeordming."      It    was    under    this    law,   admini 
I'V  the  state  authorities,  that  tin    s<>  railed  "protected  district"  to  be  dis- 
!  later,  which  is  the  Mmplrst  :u.<l  «-irl«-st  form  of  use  zoning  sprang 
generally  an  article   .in   "GewCfbHche   Anlagen,"  Vol.   2  of  the 
rl-mli   Jcs   deutschcit  Staats-tntd   I'crwaltungsrcchts,  p.   248, 

210 


ZONING  IN  EUROPE  211 

parts  of  the  British  Empire,  including  Canada,  and  in  this 
country,  where  it  is  making  rapid  progress.  Recently  it  has 
also  spread  to  Japan. 

Use  Zoning  First  to  Appear. — The  earliest  form  of  zon- 
ing to  appear  in  Germany  was  a  simple  form  of  use  zoning.  In 
the  legislation  of  some  of  the  German  states,  and  later  in  the 
laws  of  the  German  Empire,  there  was  provision  for  the  keep- 
ing of  more  objectionable  manufacturing  establishments  at  a 
distance  from  residences.2  Under  the  Empire  the  right  to 
take  this  action  was  derived  from  the  Imperial  "Industrial 
Law"  by  some  of  the  provisions  of  which  such  establishments 
were  required  to  obtain  a  special  license  from  the  state  or  local 
authorities,  often  granted  subject  to  conditions.3  Out  of  this 
system  grew  the  practice  of  establishing  one  or  more  "pro- 
tected districts"  in  which  such  establishments  were  not  per- 
mitted, and  therefore  residences  and  business  were  secure  from 
the  intrusion  of  most  if  not  all  heavy  manufacturing  and  simi- 
lar annoyances.  This  system  of  laying  out  protected  districts, 
which  often  consist  of  most,  if  not  all,  the  city  except  one  or 
more  carefully  chosen  sections,  thus  constituting  the  manu- 
facturing districts  of  the  city,  is  a  part  of  the  zoning  plan  of 
many  German  cities  to  this  day;  and,  in  many  smaller  com- 
munities,  one  protected  district  is  found  to  be  sufficient  zoning 
provision  without  the  enactment  of  any  other  zoning  regula- 
tions, either  of  bulk  or  of  use. 

The  Beginnings  of  Bulk  Zoning. — Bulk  zoning  was  first 
resorted  to  in  Germany  as  a  method  of  planning  additions  to 
cities.  The  protected  district,  by  segregating  heavy  manufac- 
tures and  other  structures  each  in  its  own  appropriate  part  of 
the  city,  tended  to  prevent  disorder  in  the  city.  Disorder,  how- 
ever, was  by  no  means  the  only  evil  in  city  growth.  In  the 

5  See  page  210,  note  above. 

8  The  Imperial  law  does  not  prevent  the  state  from  making  similar 
regulations  with  regard  to  industrial  establishments  which  are  objection- 
able, and  which  are  not  included  within  the  Imperial  law ;  for  decisions 
to  that  effect  see  the  reports  of  the  highest  Prussian  administrative  court 
or  Oberverwaltungsgericht,  Vol.  10,  p.  260,  Vol.  n,  p.  307,  Vol.  14,  p. 
323,  Vol.  18,  p.  302,  Vol.  23,  p.  268.  It  is  mainly  on  the  basis  of  these 
state  regulations,  more  numerous  and  far-reaching  than  those  of  the 
Imperial  law,  that  use  zoning  has  developed  to  its  present  extent  in 
Germany. 


212  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

old  city  the  height  and  area  of  buildings  had  been  regulated  for 
generations  by  rules  which  were  the  same  throughout  the  limits 
of  the  city;  and  under  these  regulations  cities  had  grown  uni- 
formly congested.  In  the  early  seventies  cities  in  Germany,  as 
in  all  modern  countries,  were  growing  enormously,  and  the 
additions,  under  the  same  regulations  as  those  of  the  old  city, 
were  becoming  equally  congested.  The  new  land,  unimproved 
and  comparatively  cheap  in  price,  afforded  the  last  opportunity 
for  all  time  of  ameliorating  to  any  considerable  extent  the  con- 
dition of  German  cities;  and  the  only  way  of  utilizing  this 
unique  opportunity  was  to  pass  building  regulations  especially 
adapted  to  the  new  city,  which  existing  developments  and  exist- 
ing land  prices  made  impossible  in  the  old.  Thus  bulk  zoning 
at  first  consisted  of  two  sets  of  regulations,  one  for  the  old 
city  or  city  proper,  the  other  for  the  new  city  or  city  suburbs; 
and  to  this  day  in  many  smaller  cities  in  Germany  these  two 
bulk  districts,  with  or  without  one  or  more  protected  districts, 
are  found  to  be  sufficient ;  and,  being  sufficient,  are  better  for 
them  than  any  more  complicated  system. 

Bulk  Zoning  at  First  Simple. — The  first  city  to  adopt  a 
bulk  zoning  building  ordinance  was  Altona,  a  suburb  of  Hani- 
burg.  It  was  passed  in  1884,  while  the  well  known  Fran/. 
Adickes,  later  in  Frankfort,  was  its  Biirgermeister  or  mayor, 
and  was  of  the  simple  sort  above  described. 

Development  of  Bulk  Zoning. — In  the  larger  cities  bulk 
zoning  in  its  first  simple  form  was  found  to  be  inadequate. 
The  price  of  land,  instead  of  changing  once  and  for  all  at  the 
boundary  of  the  city,  varies  throughout  the  city  and  its  suburbs 
on  account  of  varying  distance  from  the  city  center  and  for 
many  other  reasons;  and  in  order  to  take  full  advantage  of 
these  districts  of  ever  cheaper  land,  regulations  adapted  to  rarh 
of  them  and  thus  growing  more  restrictive  as  land  prices  de- 
crease, must  be  resorted  to.  This  system  of  bulk  regulation 
was  at  first  called  the  Zone  System,  but  is  now  known  as 
"graduated 4  building  regulation."  With  the  various  resi- 
dential and  industrial  use  districts  subject  to  the  bulk  re^ula- 

*"Abgestufte"   or   "Staffel."     The   term   "zoning"   was   never   applied 
in  Cicrmany  to  graduated  use  regulation  as  it  is  in  this  country. 


ZONING  IN  EUROPE  213 

tions  of  the  zone  in  which  they  are  situated,5  it  was  first  applied 
in  Frankfort-on-the-Main  in  1891  and  perfected  there  within 
the  next  twenty  years,  under  the  guidance  and  inspiration  of 
Adickes,  who  had  become  its  mayor.6 

Zoning  in  Frankfort. — Frankfort  is  divided  into  an  old 
or  inner  city,  and  an  outer  city.  The  inner  city  is  the  first  bulk 
zone.  The  outer  city  is  divided  into  an  inner,  an  outer,  and  a 
country  zone.  In  the  inner  city,  already  closely  built  with 
structures  devoted  to  all  kinds  of  uses,  no  use  districting  was 
attempted  and  the  erection  of  all  sorts  of  buildings  except  cer- 
tain nuisances  is  permitted.  In  the  zones  of  the  outer  city  there 
are  residential,  manufacturing  and  mixed  use  districts,  subject 
to  the  bulk  restrictions  of  the  zone  in  which  they  are  situated. 

In  the  inner  city  the  highest  buildings  are  allowed.  They 
must  not  exceed  the  width  of  the  street  plus  2  meters,  or  in  any 
case,  however  wide  the  street,  20  meters ;  on  streets  less  than  9 
meters  wide,  a  height  of  1 1  meters  is  in  all  cases  permitted.7 
This  is  to  the  cornice;  the  roof  above  this  is  restricted  by  an 
angle  of  45  degrees.  The  roof  is  more  than  a  mere  roof; 
although  not  technically  so  regarded,  it  is  nevertheless  in  fact  a 
roof  story,  in  which  there  are  rooms,  which,  however,  may  not 

5  With  exceptions  in  the  case  of  heavy  manufacturing ;  see  pp.  242,  243. 
It  will  be  noted  that  the  boundaries  of  height,  area,  and  use  restrictions 
are — as  universally  except  in  this  country — the  same. 

6  For  an  authoritative  statement  of  the  zone  system  in  this  form,  see 
an   article  by  Adickes   entitled   "Stadterweiterungen"  in   Conrad's   Hand- 
worterbuch  der  Staatsivissenschaften   (ist  ed.,  Jena,  1893),  Vol.  5,  p.  847, 
already  referred  to ;   and  the  somewhat  different  article  in  the  3rd  edi- 
tion,  1911,   Vol.  VII,  p.  780.     In  the  above  articles,  as  always,  Adickes 
cites  copiously  from  English  housing  experience  in  support,  of  his  posi- 
tions.    In  his   article  he  refers  to  a   report  of  the  German  Health   So- 
ciety,  drawn  up   by   Baumeister  and  himself,   and  passed   May  25,    1893, 
as   apparently  an  early,  if  not  the  earliest  complete   formulation  of  the 
zone  system  in  print.     For  a  brief  statement  of  this  phase  of  zoning  see 
R.    Baumeister    Moderne    Stadterweiterungen   being    No.    7    of    Deutsche 
Zeit   und  Streit   Fragen    (published    by   Richter,    Hamburg,    1887). 

In  the  development  of  bulk  zoning,  a  number  of  writers  give  credit 
to  Austro-Hungary ;  see,  for  instance,  "Wohnungsverhaltnisse,  Bauord- 
nung  und  Grundstiickspolitik  der  Stadt  Coin"  by  Dr.  Edmund  Wirtz,  III, 
printed  by  the  Schutzverband  fur  Deutschen  Grundbesitz,  Berlin,  1914, 
p.  19.  For  an  account  in  English,  of  'the  development  of  zoning  in  Ger- 
many, see  the  Report  of  the  Heights  of  Buildings  Commission  to  the 
Board  of  Estimate  and  Apportionment,  New  York  City,  Dec.  23,  1913, 
Appendix  III,  p.  94. 

7  Street  width  plus  three  meters  is  sometimes  allowed  if  the  extra 
height  is  not  used  to  construct  an  extra  story. 


214  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

always  be  used  for  residence,  and  when  so  used  cannot  as  a  rule 
be  an  independent  residence  but  must  be  auxiliary  to  an  apart- 
ment in  the  floor  below.  The  number  of  stories  in  residential 
buildings  is  also  restricted ;  in  this  zone  it  must  not  exceed  five 
plus  the  roof  story.  In  the  inner  city,  also,  the  greatest  pro- 
portion of  the  lot  may  be  covered  with  buildings,  three-quar- 
ters— for  corner  lots  five-sixths.  Solid  blocks,  without  break 
between  the  buildings,  are  permitted.  The  city  here  presents 
the  appearance  of  being  fully  built  up  to  a  fairly  uniform 
height. 

In  the  residential  districts,  situated  in  the  various  zones 
of  the  outer  city,  factories  are  so  discouraged  by  severe  bulk 
regulations  as  to  be  practically  forbidden.  In  the  manufactur- 
ing districts  to  be  found  for  the  most  part  along  the  railroads, 
the  harbor,  and  out  of  the  city  in  such  direction  that  the  pre- 
vailing winds  will  blow  the  smoke  away  from  the  city,  the  bulk 
restrictions  are  mild,  and  do  not,  as  in  the  other  districts,  be- 
come progressively  greater.  In  manufacturing  districts  resi- 
dences, except  in  each  case  one,  for  the  owner  or  an  employee, 
are  forbidden.8  The  mixed  districts  are  near  the  manufacturing 
districts,  and  there  too,  under  restrictions  somewhat  more 
severe  than  in  the  manufacturing  districts,  are  to  be  found 
structures  devoted  to  most  of  Jhe  various  industries. 

In  the  residential  districts  a  space  between  neighboring 
houses  of  3  meters  in  the  inner  zone,  and  a  third  more  in  the 
outer  zone,  is  required.  This  is  generally  used  for  a  broad  walk 
with  green  grass  bordering  it  on  each  side  of  the  high  fence 
that  divides  the  two  lots.  Groups  of  buildings  are,  however, 
allowed  with  a  somewhat  less  proportionate  amount  of  free 
space  for  the  group  as  a  whole.  In  the  villa  district  only  low 
detached  and  semi-detached  houses  on  large  lots  are  allowed. 

In  all  these  zones  the  amount  of  the  lot  that  must  be  left 
free  progresses  until  in  the  villa  districts  it  is  seven-tenths  of 
the  entire  lot.  So  also  the  permissible  height  exclusive  of  the 
roof  story  and  roof  decreases  to  16  meters,  and  the  number 
of  stories  to  two.  In  no  case,  however,  may  the  house  in  this 

•This    is   under   an   amendment   of    1912.     This   prohibition  exists   in 
very  few  other  ordinances. 


ZONING  IN  EUROPE  215 

zone  exceed  in  height,  except  for  the  roof  story  and  roof,  the 
width  of  the  street  upon  which  it  stands.9 

Absence  of  Business  Districts. — It  will  be  noticed  that 
the  Frankfort  ordinance  does  not  establish  districts  for 
business  from  which  manufacturing  is  excluded,  as  the  zoning 
ordinances  in  this  country  do;  nor  does  it  forbid  business,  as 
such,  or  even  some  forms  of  light  manufacturing,  in  residential 
districts,  as  is  done  here,  except  by  private  covenants.  These 
covenants  in  Frankfort  cover  considerable  territory,  and  are 
often  made  a  part  of  the  public  ordinance.  The  tendency  to 
separate  business  and  residence,  so  strong  in  England  and 
this  country,  is  much  weaker  on  the  continent  of  Europe, 
where,  almost  without  exception,  apartments  are  to  be  found 
over  stores  and  offices.  In  Berlin  there  is  not  a  single  block 
where  business  has  entirely  driven  out  residences,  and  very  few 
in  Paris  or  Vienna.  Nor  could  business  and  industry  in  Ger- 
many be  completely  excluded  from  any  district  by  law.  In 
Prussia,  under  ancient  statutes,  it  is  the  duty  of  the  police  to 
protect  the  public  health,  order  and  safety ;  but  they  can  promote 
the  general  welfare  only  by  virtue  of  specific  provisions  of  law. 
The  Prussian  courts  have  upheld  ordinances  segregating  indus- 
tries offensive  by  reason  of  the  emission  of  odor,  smoke,  noise, 
etc. ;  and  ordinances  excluding  from  residential  districts  not 
only  these  industries,  but  all  activities  likely  unduly  to  increase 
traffic  or  in  any  way  to  disturb  the  peace  and  quiet  of  such 
localities.  Prussian  courts  have  repeatedly  held,  however,  that 
business  and  industry  that  was  not  objectionable  on  grounds 
such  as  these  could  not  be  excluded ;  10  and  this  has  always  been 
the  law  in  all  the  German  states.  In  1918,  however,  Prussia 
in  her  Housing  Law  u  materially  increased  the  power  of  her 

9  Except  that  on  streets  less  than  9  meters  wide,  the  height  may  al- 
ways be  9  meters. 

10  Decisions    of    the    "Oberverwaltungsgericht"     (or    highest    adminis- 
trative  court)    of    Prussia,   Vol.   26,   p.   323    (1894);   37,   p.   401    (1900); 
57,  p.  461   (1910)  ;  and  cases  cited  therein,  an  abstract  of  which  opinions 
is   given  in  the  Report  of   the  Heights  of  Buildings  Commission,   New- 
York  City,  1913,  p.  no.     See  generally  on  Prussian  Building  Police  Law, 
Baltz,    Poliseirecht,   4th    edition,    1910,    Carl    Heymann's    Verlag,    Berlin; 
also   Meyn,   "Stadterweiterungen  in  rechtlicher  Besiehung,"   1893. 

"Art.  4,  sec.   i,  no.  3.     For  a  synopsis  of  the  law  as  a  whole  see  p. 
466,  ff. 


216          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

building  police  in  use  zoning  by  providing  that  "By  building 
ordinances  provision  may  be  made  .  .  .  for  the  selection  and 
special  regulation  of  particular  parts  of  cities  and  towns,  streets 
and  squares,  in  which  the  erection  only  of  residential  struc- 
tures with  their  accessories,  or  of  industrial  establishments  with 
accessory  buildings,  is  permitted." 

The  Courts  Sustain  Zoning. — In  1902  zone  ordinances, 
at  that  time  the  most  radical  in  Germany,  were  issued  for  a 
part  of  the  suburbs  of  Berlin.12  It  was  with  relation  to  a  pro- 
vision in  these  ordinances  that  in  1904  the  first  decision  in 
Germany  on  the  validity  of  bulk  zoning  was  rendered  by  Prus- 
sia's highest  administrative  court,  sustaining  it  as  a  health 
measure.13  After  this  decision  removed  all  doubt  as  to  the 
legality  of  bulk  districting,  the  system  soon  began  to  be  gen- 
erally adopted  in  Prussia  and  throughout  Germany. 

Later  Zoning  Regulations. — Further  experience  in  Ger- 
many soon  led  to  the  abandonment  in  most  places  of  the  attempt 
to  regulate  bulk  by  broad  zones  of  increasing  distance  from  the 
old  city.  Thus  in  Dresden  and  other  cities  where  there  were 
numerous  centers  of  concentration  and  high  land  values,  regu- 
lation, both  by  bulk  and  by  use,  is  by  districts,  which  are  gen- 
erally of  small  size  so  as  more  accurately  to  fit  complex  condi- 
tions; in  Frankfort,  still  regulated  by  zones,  certain  streets, 
such  as  main  traffic  thoroughfares,  running  through  more  than 
one  zone,  were  found  to  have  characteristics  which  made  it  seem 
wise  to  pass  special  regulations  for  them,  thus  splitting  up  the 
zones ;  and  in  Stuttgart,  Karlsruhe  and  other  places,  zones  and 
districts  were  altogether  abandoned  in  favor  of  the  regulation 
by  streets;  or,  to  be  more  accurate,  the  street,  single  or  in 
groups,  was  adopted  as  the  sole  unit  in  zoning.  Partly,  per- 
haps, in  consequence  of  this  evolution,  bulk  zoning  in  Germany 
is  less  frequently  called  zoning,  but  the  more  accurate  and  in- 
clusive expression  "graduated  building  regulation"  is  gener- 

11  With  regard  to  zoning  in  Berlin  see  B.  Wehl,  "Die  Wirtschaftlichkcit 
der  -wichtigstcn  Bauklasscn  von  (irnss-Hi-rlin."  (ik-rlin,  C.  Hrymann's 
Verlag,  1914)  ;  and  Frank  Backus  \Villi.ims.  "Huildiny  Rc<iulat\on  by 
Districts,  the  Lesson  of  Berlin,  Publications  of  National  Housing  Asso- 
ciation, No.  24,  New  York  City,  1914. 

"  Obtrvtnvaltunsgerit ht,  Vol.  26,   p.  323    (1894). 


ZONING  IN  EUROPE  217 

ally  used.14  In  some  cities,  however,  zones,  in  fact  and  in 
name,  are  retained,  and  the  newer  differentiations  added.  Thus 
in  Diisseldorf  in  addition  to  five  zones  covering  the  whole 
city,  and  rules  for  special  streets,  in  many  cases  running  through 
several  zones,  there  are  eleven  classes  of  streets  within  one  or 
other  of  the  zones.  These  classes  are  in  most  cases  created 
for  various  types  of  housing.  The  distinctions  are  often  very 
minute.  There  are,  for  instance,  two  classes  for  one  and  two 
family  houses  in  blocks,  the  one  with  and  the  other  without  rear 
buildings;  two  classes,  similar  in  all  respects  to  these,  except 
that  three  family  houses  are  also  allowed;  two  classes,  alike  in 
all  respects  to  those  first  mentioned  except  that  in  each  case  the 
houses  must  be  detached,  the  required  open  spaces  between  the 
houses  and  the  side  line  of  the  lots  varying,  however,  in  breadth ; 
a  class  for  the  better  sort  of  tenement  houses  in  blocks,  with 
not  more  than  two  families  in  each  story ;  a  class  for  tenement 
houses  similar  in  all  respects  to  the  class  first  mentioned  except 
that  they  are  to  be  of  cheaper  and  simpler  construction,  and 
suitable  for  not  more  than  three  families  on  any  one  floor,  etc., 
etc.  When  it  is  remembered  that  the  lots  on  which  these  class 
restrictions  are  imposed  are  widely  scattered  throughout  the 
zones,  and  subject  not  only  to  class  but  to  the  various  zone 
restrictions  as  well,  it  is  not  surprising  that  many  city  planners 
in  Germany  think  the  regulations  there  too  detailed  and  intri- 
cate, and  those  which,  as  in  Karlsruhe,  adopt  the  street  as  the 
sole  zoning  unit,  preferable.15 

"To  graduated  bulk  differentiation  has  been  added  during  the  last 
fifteen  years  in  Germany,  in  all  the  modern  building  ordinances,  differ- 
entiation graded  to  accord  with  the  various  types  of  houses,  for  one  and 
two  families,  for  from  three  to  six  families  (the  so-called  "Biirger- 
haus")  and  for  more  than  six  families  (the  large  tenement  house)  ;  the 
requirements  lessening  with  the  decrease  in  the  number  of  families 
the  house  is  to  accommodate. 

16  The  construction  of  tall  buildings  has  been  suggested  of  late  in  a 
number  of  European  countries,  uniformly,  as  yet,  without  success.  For 
information  with  regard  to  the  movement  in  Germany  the  curious  reader 
is  referred  to :  A.  Bredtschneider,  Die  gross  Berliner  Bauordnungen, 
ihre  Bauweisen  und  ihr  Geltungsbereich,  Berlin,  C.  Heymann's  Verlag, 
1919 ;  B.  Mohring,  Uebcr  die  Vorzuge  der  Turmhduser  und  di-e  Voraus- 
setzungen  unter  denen  sic  in  Berlin  gebaut  werden  kdnnen,  Berlin, 
Zirkel-Verlag,  1921 ;  P.  Wittig,  Studie  uber  die  ausnahmsweise  Zulas- 
sung  von  Turmhdusern  in  Berlin,  Berlin,  1918,  im  Selbstverlag ;  and  an 
article  in  the  1921  Deutsche  Bauzeitung,  p.  388,  entitled  Der  Uebergang 
sum  Hochbau. 


2i8          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Zoning  in  England. — In  England  zoning  was  introduced 
in  1909  when  the  first  town  planning  act  in  that  country  was 
passed.  Under  it  areas  are  chosen  for  planning  and  a  special 
scheme  drawn  up  for  each  area.  It  is  as  a  part  of  such  schemes 
that  zoning  both  by  bulk  and  by  use,  is  done.16  This  method 
of  planning  has  the  advantage  of  selecting  areas  for  develop- 
ment which  are  most  in  need  of  it,  such  as  vacant  land  near 
cities;  and  the  disadvantage  that  as  a  rule  only  portions  of  cities 
are  planned  instead  of  cities  as  a  whole.  Zoning  as  a  part  of 
this  system  shares  its  drawbacks  and  advantages,  including  the 
advantage,  largely  lacking  in  other  countries,  of  the  close  asso- 
ciation of  the  planning  of  the  public  features  of  the  community 
and  zoning  or  the  planning  of  the  private  features. 

NoteD 

No.  i.    HOUSING  IN  GERMAN  CITIES 

In  1910  the  German  Imperial  Statistical  office  issued,  in  its  series 
of  Workmen's  Statistics,  a  volume  entitled  Housing  in  German 
Cities."''"  The  relation  between  city  planning  and  housing  is  a  close 
one.  This  is  especially  true  of  zoning  and  housing.  In  order,  there- 
fore, to  understand  zoning  in  Germany  it  is  especially  necessary  to 
get  some  idea  of  her  housing  legislation.  This  volume,  giving  as  it 
does  a  summary  of  the  legislation  and  ordinances  as  they  existed  in 
both  these  fields  in  1909,  affords  an  excellent  means  to  that  end.  The 
information  used  in  the  book  was  obtained  from  106  cities,  including 
all  cities  and  city  states  (like  Bremen  and  Hamburg)  that,  according 
to  the  census  of  December  I,  1905,  had  more  than  50,000  inhabitants; 
and  also  a  number  of  cities  that,  in  relation  to  housing,  were  of 
special  interest. 

The  following  passages,  taken  from  the  preface,  show  the  purpose 
and  scope  of  the  work : 

"The  first  division  of  this  work  treats  of  the  legal  side  of  housing. 
It  gives  the  substance,  selected  from  certain  special  points  of  virw, 
of  the  regulations  in  force  in  these  cities;  the  building  regulations; 

"It  is  not,  however,  called  zoning,  but  is  described  in  the  various 
schemes  under  the  act  and  the  laws  dealing  with  them,  by  such  expres- 
sions as  "allocating  particular  sites  for  particular  sorts  of  buildings," 
"limiting  the  number  of  dwelling  houses  to  the  acre,"  etc. 

"""  Hcitriiye  zur  Arbfiitrtiatutik,  A'o.  //;  ll'ohnunysfursorgf  in    '. 
schen  Staedtcn;   I'.c.-irU-itet  im  Kaisrrlichrn  St.itistisrhen  Amtc,  Abteilung 
fur  Arbeiterstatistik,  Berlin,  Carl  Heymann's  Vcrlag,  1910. 


ZONING  IN  EUROPE  219 

the  housing  ordinances;  the  ordinances  regulating  lodging  houses; 
the  provisions  with  relation  to  the  inspection  of  dwellings.  .  .  . 

"From  the  building  police  regulations  substantially  the  following 
provisions  were  chosen:  Height  of  buildings  (front  and  rear  build- 
ings), number  of  stories,  permissible  area  to  be  built  over  and  size  of 
court,  space  between  buildings  of  adjoining  proprietors,  dwelling 
rooms  in  general,  roof  and  cellar  rooms,  water-closets;  also  such  pro- 
visions as  contain  modifications  lessening  the  requirements  with  re- 
gard to  the  construction  of  small  houses,  one-family  houses,  etc. 
These  are  essentially  health  measures." 

"How  far  the  building  ordinances,  especially  their  gradation,  in 
zones  or  districts,  from  the  interior  of  the  city  to  its  outer  sections — 
chiefly  with  relation  to  area  covered,  height,  and  number  of  stories 
— were  the  result  of  other,  especially  socio-political  considerations, 
could  not  be  shown;  still  less  how  far  these  provisions  were  success- 
ful in  causing,  for  instance,  lower  rents.  The  reader  will  remember 
the  opinion  so  often  expressed  with  emphasis  since  about  1890,  much 
furthered  by  the  works  of  Rudolph  Eberstadt,  that  (to  use  his  words) 
'the  first  effect  of  the  systematic  use  of  the  congested,  many  storied 
system  of  building  in  residential  sections  is  a  rise  in  house  rents.' 
The  controversy  whether  the  large  tenement  house  makes  dwellings 
dearer  or  cheaper  must  be  considered  as  still  unsettled.19  For  this 
reason  it  seemed  proper  in  the  present  work  to  give  in  all  possible 
detail  the  particular  provisions  of  the  building  ordinances  on  these 
points,  so  as  in  this  way  to  lay  certain  foundations  for  further  inves- 
tigations with  relation  to  this  question.  Nor  was  it  possible  within 
the  limits  of  this  work  to  determine  to  what  extent  outer  sections  for 
which  building  ordinances  fixed  a  lesser  intensity  of  building  were 
in  fact  inhabited  by  the  working  population  or  those  of  less  financial 
ability. 

"The  second  division  of  this  work  is  devoted  to  an  account  of 
the  more  direct  methods  of  cities  in  securing  good  housing.  First 
in  this  division  are  sections  with  regard  to  the  inspection  of  dwell- 
ings, and  information  bureaus  of  vacant  dwellings.  In  the  next  sec- 
tion follows  a  description  of  the  measures  for  the  promotion  by  cities, 
directly  or  indirectly,  of  the  building  of  houses  with  small  apart- 
ments; their  provision  of  dwellings  for  their  own  laborers;  their 
actual  building  of  houses  with  small  apartments ;  their  making  of 
loans;  their  making  of  pledges,  granting  of  building  land  free  or 
cheaply,  and  reduction  of  or  granting  credit  for  the  payment  of  the 
costs  of  street  construction  or  of  assessments  for  the  same;  their 
giving  of  land  on  building  lease  or  contract  for  repurchase.  Only 
the  measures  taken  by  the  cities  themselves  are  considered  and  not 

u  Comp.,  for  instance,  B.  H.  Herkner,  The  House  Question  and  the 
City  Plan,  No.  5  of  Vol.  i,  of  Stadtebauliche  Vortrdge  (Berlin,  1909),  p. 
15;  Adolf  Weber,  Ground  and  Dwelling,  Leipzig,  1908,  p.  88  ff. 


220  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  activity  of  building  societies,  private  parties,  etc.,  in  these  cities. 
The  object  especially  in  view,  as  was  stated  at  the  outset,  has  been 
the  investigation  of  the  housing  of  the  workman;  but  as,  in  the  first 
division  of  this  work,  the  legal  measures  with  relation  to  the  housing 
of  working  men  could  seldom  be  distinguished  from  the  legal  meas- 
ures with  regard  to  housing  generally,  so  in  the  second  division  of 
the  work,  the  measures  for  the  encouragement  of  the  building  of 
workmen's  dwellings  are  often  undertaken  not  for  the  working  popu- 
lation alone  but  for  the  poorer  classes  generally." ' 

The  introduction  to  this  work  gives  a  summary  of  the  regulations 
and  statistics  it  contains.  A  translation  of  part  of  that  introduction 
follows : 

"A  number  of  German  States  (Bavaria,  Wurttemberg,  Baden, 
Hesse,  Brunswick,  Anhalt)  have  issued  general  building  regulations 
for  their  entire  territorial  limits.  In  these  states  the  provisions  of  the 
separate  states,  contained  in  the  state  building  regulations,  may  be 
enlarged  or  in  certain  points  changed  as  local  conditions  may  re- 
quire. ...  In  Prussia  there  is  no  state  building  ordinance."  .  .  . 
At  present,  with  the  exception  of  a  few  general  principles  of  the 
General  State  Law"  i,  8,  sees.  33  et  seq.,  building  police  law  will  be 
found  in  the  building  police  ordinances  of  the  cities  that,  in  accord- 
ance with  the  law  of  March  u,  1850,  sec.  6,  and  the  Law  with 
regard  to  general  state  administration,"  of  July  30,  1883,  sees.  137  et 
seq.,  are  passed  generally  by  the  local  police,  with  the  consent  of  the 
executive  or  upper  branch  of  the  local  Council,"  Biirgermeister, 
etc.  .  .  . 

"A  majority  of  the  cities  have  passed  so-called  zone  building  ordi- 
nances. The  principle  of  the  zone  building  ordinance  is  that  for  par- 
ticular, especially  outlying  districts  of  the  city,  graduated,  materially 
severer  provisions,  exist  than  for  the  city  center.  The  graduations 
are  principally  in  the  provisions  with  regard  to  the  amount  of  the  lot 
that  may  be  covered  with  buildings,  their  height  and  number  of 
stores.  .  .  . 

"Other  cities  have  not,  indeed,  passed  a  zone  building  ordinance 
— i.  e.,  did  not,  on  passage  of  the  building  ordinance,  divide  in  a  sys- 

"  References  are  further  given  to  the  following  works :  Handbuch  des 
n'oltnunffsu'escus,  by  R.  Ebcrstadt.  Jena,  1909  [there  is  now  a  fourth 
edition,  1920]  ;  Klcitthaus  und  Meitkascrnc,  by  A.  Voigt  and  P.  Geldner, 
Merlin,  1005;  Stadtcbauliche  Vprtrage,  by  Brix  and  Genzmer,  already 
referred  to;  and  the  bibliographies  in  these  works  and  in  the  "Zcitschrift 
fur  Wohnungswesen.1' 

u  See  in  this  connection  the  Prussian  Housing  Law,  passed  in  1918 
(p.  466,  ff.  of  this  work),  which,  although  not  thoroughgoing  enough  to  be 
called  a  state  building  law  or  ordinance,  does  contain  certain  state-wide 
housing  regulations  (author). 

"  "Allgemeines    Landrecht." 

*  "AHgemeine   Landesvcrwaltung,"   Ges.   Samml.,   1883,   Nr.  8951. 

""Magistral." 


ZONING  IN  EUROPE  221 

tematic  manner  the  entire  territory  of  the  city  into  zones — but  never- 
theless, by  the  passage  of  amendments  for  given  districts,  have  pro- 
vided a  less  intensive  use  of  the  land  for  building  purposes.  The 
introduction  of  such  restrictions  on  building  for  separate  parts  of  the 
city  through  a  zone  building  ordinance  or  through  amendments  may 
have  as  its  object  to  secure  to  them  a  villa  or  country  character,  or 
it  may  have  come  from  the  intention  to  force  back  the  large  tenement 
house  and,  through  introduction  of  low  building,  to  provide  healthier 
and  cheaper  dwellings.  Which  of  these  motives  was  determining  in 
any  case  in  the  passage  of  building  ordinances,  and  how  these  inten- 
tions have  resulted  in  fact,  could  not  here  be  shown. 

"Here  reference  is  also  made  to  the  graduated  building  provisions 
which  contain  less  severe  requirements  for  'small  buildings/  'small 
dwelling  houses'  'one  and  two  family  houses.'  The  less  exacting  pro- 
visions are  principally  with  relation  to  the  use  of  building  materials, 
the  amount  of  the  lot  that  may  be  covered,  the  clear  height  of  dwell- 
ing rooms,  etc.  Such  graduations  and  milder  provisions  have  chiefly 
been  adopted  by  the  following  cities :  Konigsberg,  Posen,  Bromberg, 
Breslau,  Magdeburg,  Halle,  Altona,  Dortmund,  Frankfort-on-the- 
Main,  Diisseldorf,  Elberfeld,  Oberhausen,  Rheydt,  Neuss,  Coblenz. 

"Of  the  health  provisions  of  the  building  ordinances  with  relation 
to  the  building  itself,  those  with  relation  to  the  height  of  buildings, 
the  number  of  stories,  the  amount  of  lot  that  may  be  covered  or  size 
of  court,  the  space  between  neighboring  buildings  or  detached  or 
partly  detached  buildings,  have  been  chosen  for  detailed  presentation. 

"Next  come  the  provisions  with  relation  to  height  of  buildings, 
since,  in  connection  with  the  provisions  with  regard  to  the  distance 
of  the  building  from  buildings  opposite,  they  determine  the  share  of 
light  and  air  for  the  inhabitants  of  the  building  in  question.  With 
regard  to  the  relation  of  the  height  of  buildings  on  the  street  to  their 
distance  from  opposite  buildings,  the  usual  provision  is  that  the 
height  of  the  building  shall  not  exceed  the  breadth  of  the  street. 
This  provision,  for  instance,  is  also  that  of  the  state  law  for  the  cities 
here  considered.  So,  according  to  the  Bavarian  Building  Ordinance 
(Royal  Ordinance  with  relation  to  building  of  February  17,  1901), 
'the  height  of  private  buildings,  whether  newly  erected  or  raised  by 
addition  of  stories,  may  not  exceed  the  breadth  of  the  street,  includ- 
ing the  sidewalk  and  any  front  garden.'  * 

"According  to  the  General  Building  Law  for  the  Kingdom  of 
Saxony  of  July  I,  IQOO,28  'the  height  of  buildings  shall  not,  as  a  gen- 
eral rule,  exceed  the  breadth  of  the  street,  including  any  front  garden.' 
The  same  provision  is  found  in  the  state  building  ordinance  of  Baden 
and  in  a  building  ordinance  for  the  duchy  of  Anhalt.  In  accordance 

25  I.e.,  setback,  which  must  be  used  as  a  lawn  or  garden. 
20Gesetz-  u.  Verord-Blatt,  1900,  p.  381. 


222  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

with  the  state  building  ordinance  for  Hesse,  of  May  27,  1881,  how- 
ever, 'the  greatest  permitted  height  of  private  dwellings  shall  not,  as 
a  rule,  exceed  the  width  of  the  street,  including  the  sidewalk  and  the 
front  garden,  by  more  than  2  meters.'  In  accordance  with  the  state 
building  ordinance  for  the  duchy  of  Brunswick,  of  March  13,  1899, 
'the  height  of  buildings  to  be  erected  on  the  street  shall  not  exceed 
the  width  of  the  street  by  more  than  4.5  meters.' 

"The  provision  that  the  height  of  buildings  shall  not  exceed  the 
street  width  is  found  as  the  fundamental  provision  in  the  majority 
of  the  building  ordinances  of  the  cities  here  considered.  In  addition 
there  is  usually  given  a  fixed  measure  as  the  greatest  measure  of  the 
height  of  buildings,  for  which  regularly  the  height  of  the  building  is 
reckoned  from  the  ground  to  the  upper  edge  of  the  roof  cornice. 
There  will  be  found  also  in  the  cities  with  zone  building  ordinances 
sharper  provisions  for  the  outlying  zones.  So  in  Posen  the  height 
of  buildings  in  general  must  not  be  greater  than  the  established  street 
breadth;  but,  nevertheless,  in  the  first  building  class,  at  most  20 
meters;  in  the  second,  17.50  meters;  and  in  the  third,  15  meters. 
Similar  graded  provisions  with  the  fundamental  provision  that  the 
building  height  shall  not  exceed  the  street  breadth  are  in  force, 
among  others,  for  Konigsberg  (for  streets  less  than  7  meters  in 
breadth,  always  7  meters  high),  Breslau  (Zones  II,  III  and  IV), 
Kiel,  Flensburg,  Hagen,  Frankfort-on-the-Main  (outer  city  with  a 
street  breadth  up  to  9  meters,  always  9  meters),  Cassel,  Diisseldorf, 
Essen,  Cologne  (Zones  II,  III  and  IV),  Mannheim,  Freiburg.  The 
fundamental  principle  that  the  height  of  buildings  shall  not  exceed 
the  street  breadth  is  in  force  also  in  Berlin  and  its  suburbs,  Gorlitz, 
Konigshtitte,  Gleiwitz  and  Beuthen,  Luneburg,  Pforzheim,  and  the 
Bavarian  and  Saxon  cities. 

"In  a  number  of  cities  on  streets  of  a  given  breadth  or  less  the 
height  of  buildings  may  exceed  that  width ;  but  on  streets  of  more 
than  that  width  the  height  may  not  exceed  it.  This  width  is : 

City                                    Meters  City  Meters 

Spandau    10  Minister     15 

Potsdam    to  Bielefeld  (outside  the  walls)  10 

Brandenburg    10  Wiesbaden    1 1 

Frankfort-on-Oder    10          Duisburg    15 

Stettin    15  Barmen  (2nd  zone)   14 

Bromberg    II  Saarbriicken   . . .  12 

Magdeburg   11.50      (Jrand  duchy  Saxony  M 

Altona    n  Brunswick  (outer  city)   9 

Hanover    10          Bremen    1 1 

Dortmund    15  Metz    15 

Bochum   13.50 

"In  a  number  of  cities  the  breadth  of  the  street  may  be  exceeded 
by  a  given  measure.  This  is  true  principally  of  the  cities  in  Wiirt- 


ZONING  IN  EUROPE  223 

temberg,  where  the  street  width,  generally,  may  be  exceeded  up  to  45 
meters ;  also  of  the  cities  in  Hesse,  where  it  may  as  a  rule,  or  from 
a  given  breadth  on,  be  exceeded  up  to  2  meters. 

"In  a  still  further  number  of  cities,  in  so  far  as  the  street  breadth 
reaches  a  fixed  minimum,  the  height  of  buildings  may  exceed  the 
street  breadth  by  a  fixed  measure  in  addition  to  that  excess.  Thus 
the  height  of  buildings  in  Cologne  (first  zone)  with  a  street  breadth 
of  more  than  8  meters,  may  exceed  11.50  by  as  much  as  the  street 
width  exceeds  8  meters.  Bonn,  Miilheim-on-the-Rhine,  Coblenz  and 
Colmar  have  somewhat  similar  rules. 

"Further,  in  a  number  of  cities,  the  building  height  may  exceed 
the  street  width  as  a  rule,  or  from  a  given  street  width  on.  So  in 
Danzig,  with  a  street  width  of  over  12  meters,  the  height  of  the 
buildings  may  be  i%  the  street  breadth.  In  Hanover,  with  a  street 
width  up  to  10  meters,  the  building  height  may  also  equal  il/\.  the 
street  breadth.  In  Osnabriick,  with  a  street  width  up  to  8  meters,  a 
building  height  il/2  times  the  street  is  allowed.  In  Liibeck,  up  to  a 
depth  of  20  meters  behind  the  building  line,  a  building  height  of  i}4 
times  the  street  breadth  is  allowed.  In  Barmen,  in  the  first  zone, 
with  a  street  width  over  10  meters,  a  height  of  building  of  half  the 
street  width  plus  9  meters  is  allowed;  in  the  second  zone,  with  a 
street  breadth  of  from  10  to  14  meters,  a  height  of  half  the  street 
breadth  plus  7  meters  is  allowed. 

"As  above  stated  a  majority  of  cities  have  established  a  maximum 
for  height  of  buildings  beyond  which  nothing  may  be  built.27 

"In  cities  with  zone  building  ordinances  this  height  grows  less  in 
the  outer  districts.  So  far  as  relates  solely  to  the  respective  first 
zones,  it  appears  that  a  maximum  height  of  22  meters  (a  greater 
measure  does  not  occur  in  the  cities  here  considered)  is  allowed  in 
the  following  cities:  Berlin,  Charlottenburg,  Schoneberg,  Rixdorf, 
Deutsch-Wilmersdorf,  Lichtenberg x  (the  five  last-named  places  in 
so  far  as  their  territory  lies  within  the  ring  railroad),  Breslau, 
Altona,  Kiel  and  Cassel;  the  Bavarian  cities;  the  Saxon  cities,  except 
Dresden,  Zittau  and  Grimmitschau-Mayence  and  Rostock.  Konigs- 
berg  has  a  maximum  height  of  21  meters. 

"A  maximum  height  of  20  meters  exists  in  Danzig,  Stettin,  Posen, 
Konigshiitte,  Gleiwitz,  Reuthen,  Magdeburg,  Erfurt,  Flensburg,  Han- 
over, Hamburg,  Dortmund,  Gelsenkirchen,  Frankfort-on-the-Main 
(inner  city),  Diisseldorf,  Duisburg,  Elberfeld,  Miinchen-Gladbach, 
Cologne,  Bonn,  Mulheim-on-the-Rhine,  Aachen,  Stuttgart,  Ulm,  Heil- 
bronn,  Karlsruhe,  Mannheim,  Brunswick. 

27  Except,  as  a  rule,  public  buildings,  monumental  buildings,  etc. ;  and 
turrets  and  other  ornamentation  to  a  limited  height  and  amount.  (Author.) 

"  The  five  cities  last  named  have,  excepting  government,  been  a  part 
of  Berlin  for  many  years,  and  are  now,  with  outlying  municipalities, 
legally  a  part  of  it. 


2Z4  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

"The  maximum  height  of  19  meters  is  fixed  for  Wiesbaden,  Frei- 
burg, Bremen;  of  18.50  meters  for  Muhlhausen-in- Alsace ;  18  meters 
for  Charlottenburg,  Schoneberg,  Rixdorf,  Deutsch-Wilmersdorf, 
Lichtenberg  (so  far  as  this  city  lies  outside  the  ring  railroad), 
Brandenburg,  Frankfort-on-Oder,  Gorlitz,  Liegnitz,  Halle,  Osna- 
briick,  Miinster,  Bielefeld,  Essen,  Barmen,  Crefeld,  Coblenz,  Saar- 
briicken,  Zittau,  Grimmitschau,  Lubeck. 

"A  maximum  of  under  18  meters  exists  in  Hagen,  Solingen, 
Rheydt.  .  .  . 

"The  number  of  stories  allowed  in  cities  with  zone  building  ordi- 
nances grows  less  from  the  interior  to  the  outskirts.  A  few  cities 
make  the  number  of  the  stories  dependent  upon  the  street  width.  This 
is  true  of  Harburg,  Bochum,  Barmen,  Pforzheim.  .  .  . 

"In  many  cities  both  the  amount  of  the  lot  that  may  be  covered 
and  the  minimum  size  of  courts  is  fixed.  .  .  .  For  corner  lots  .  .  . 
there  are  provisions  that  allow  an  intenser  use.  In  the  building  ordi- 
nances that  provide  for  a  division  by  zones,  the  provisions  with  re- 
gard to  the  amount  of  the  lot  that  may  be  covered  are,  throughout, 
so  graded  that  in  the  outer  districts  only  a  small  part  of  the  surface 
may  be  used  for  buildings.  In  the  following  summary  only  the  first, 
or  inner,  zone  will  be  considered: 

"As  the  proportion  of  the  lot  that  may  be  built  over  in  a  majority 
of  cities,  three-quarters  of  the  entire  lot  is  fixed.  In  this  class  belong 
Konigsberg,  Danzig,  Spandau,  Potsdam,  Brandenburg,  Frankfort-on- 
Oder,  Breslau,  Gorlitz,  Liegnitz,  Halle,  Altona,  Kiel,  Flensburg,  Dort- 
mund, Galzenkirchen,  Bochum,  Frankfort -on-the-Main  (inner  city), 
Duisburg,  Elberfeld,  Bonn,  Remschied,  Miinchen-Gladbach,  Solingen, 
Rheydt,  Neuss,  Cologne,  Bonn,  Miilheim-on-the-Rhine,  Aachen,  Cob- 
lenz, Saarbriicken,  Karlsruhe,  Constance,  Darmstadt,  Offenbach, 
Worms  and  Brunswick,  as  well  as,  generally,  the  Bavarian  cities." 

"A  still  greater  use  of  the  lot  for  building  (and  indeed  to  four- 
fifths)  is  allowed  in  Giessen,  Lubeck,  Muhlhausen-in-Alsace  and  Metz. 

"A  lesser  use  of  the  lot  than  in  the  foregoing  cities  (and  indeed  up 
to  seven-tenths)  is  provided  in  Stettin,  Posen,  Bielefeld  (in  the  case 
of  lots  inside  the  old  walls),  Bautzen.  Up  to  two-thirds  may  be 
covered  in  Bromberg,  Konigshiitte,  Gleiwitz,  Beuthen,  Magdeburg, 
Erfurt,  Hanover,  Harburg,  Luneberg,  Miinster,  Hagen,  Oberhausen, 
Munich,  Zittau,  Rostock,  and  in  the  duchy  of  Anhalt.  Up  to  half 
may  be  so  used  in  Charlottenburg,  Schoneberg,  Rixdorf,  Deutsch- 
Wilmersdorf,  Lichtenberg  (in  so  far  as  these  five  cities  lie  outside 
the  ring  railroad  and  so  far  as  building  Class  I  is  concerned). 

"In  a  number  of  cities  the  amount  of  lot  that  may  be  covered 
is  so  fixed  that  the  lot  is  divided  into  strips.  This  is  true,  for  in- 

"  In  Gorlitz  and  Liegnitz  in  the  case  of  lots  whose  depths  from  the 
neighboring  border  docs  not  exceed  35  meters. 


ZONING  IN  EUROPE  225 

stance,  of  Berlin,  Charlottenburg,  Schoneberg,  Rixdorf,  Deutsch- 
Wilmersdorf,  Lichtenberg  (so  far  as  these  cities  lie  within  the  ring 
railroad).  The  first  strip  that,  measured  from  the  building  line,  ex- 
tends to  the  depth  of  6  meters  may  be  fully  covered;  the  second  strip, 
that  extends  to  a  depth  of  32  meters,  may  be  built  over  in  Berlin  to 
the  extent  of  seven-tenths,  in  the  rest  of  the  above  named  cities,  of 
sixty-five  hundredths,  of  the  lot.  A  similar  division  into  strips,  al- 
though to  different  limits,  exists  in  Osnabriick,  Cassel,  Wiesbaden, 
Dresden. 

"In  Essen  the  amount  of  the  lot  that  may  be  covered  is  fixed 
with  relation  to  the  number  of  stories.  Thus  in  Zone  i,  with  two 
and  three  story  houses,  75  per  cent  of  the  surface,  with  four-story 
houses  70  per  cent,  may  be  built  over.  In  a  few  other  cities  (Solingen, 
Bonn,  Mulheim-on-the-Rhine)  in  certain  zones  the  extent  of  surface 
that  may  be  built  over  is  dependent  upon  height. 

"In  Stuttgart,  Ulm,  Heilbronn,  Freiburg,  Pforzheim,  Heidelberg, 
minimum  requirements  exist  only  with  regard  to  the  height,  while 
actual  provisions  with  regard  to  the  amount  of  the  lot  that  may  be 
covered  are  lacking.  There  are  in  them  all  provisions  with  relation 
to  the  distance  between  front  and  rear  buildings ;  also  'must  a  certain 
amount  of  the  lot,  with  a  given  relation  to  the  height  of  the  buildings, 
remain  uncovered.'  ...  In  Ulm,  'in  Class  i  of  the  new  building  lands, 
a  court  must  be  left  behind  the  front  building  equal  to  half  the  height 
of  its  rear  side.'  .  .  . 

"In  Freiburg  a  portion  of  the  lot,  undivided  and  in  one  piece,  of 
at  least  50  square  meters  must  be  left  free  of  buildings  when  there 
are  buildings  of  three  or  less  stories  upon  it,  and  for  every  additional 
story  20  square  meters  more  are  required.  Pforzheim  demands  a 
court  of  30  square  meters  by  3.60  meters  least  breadth;  Heidelberg, 
one  of  60  square  meters. 

"In  the  cities  that,  in  addition  to  provisions  with  relation  to  the 
proportion  of  the  lot  that  may  be  covered,  have  at  the  same  time  rules 
with  relation  to  the  size  of  the  court,  the  least  surface  that  is  de- 
manded is,  in  the  majority  of  cases,  given, — sometimes  in  terms  of 
minimum  square  surface,  while  other  cities  simply  give  the  minimum 
breadth  or  length  of  the  court.  In  general  a  court  of  about  40  square 
meters  is  required  by  Danzig,  Stettin,  Gorlitz,  Liegnitz,  Dortmund, 
Aachen,  Coblenz,  Bautzen;  30  to  36  square  meters  are  required  by 
Posen,  Cassel,  Harburg,  Bielefeld,  Oberhausen  (for  lots  of  less  than 
108  square  meters),  Rheydt,  Neuss;  50  square  meters  are  required 
in  Spandau,  Potsdam,  Brandenburg,  Frankfort-on-Oder,  Halle, 
Remscheidt  (for  lots  of  less  than  200  square  meters),  Dresden.  Ber- 
lin demands  a  minimum  court  of  80  meters  least  dimension.  In 
Magdeburg,  in  the  old  city,  a  free  uncovered  court  of  10  by  10  meters 
minimum  measurement  must  be  left.  .  .  . 

"The  provisions  found  in  the  building  ordinances,  with  regard  to 


226  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

dwelling  rooms  relate  first  to  their  clear  height,  and  their  win- 
dows. .  .  . 

"Some  of  the  building  ordinances  .  .  .  especially  those  here  treated 
of,  contain  definite  provisions  with  regard  to  the  minimum  size  of 
rooms  to  be  constructed.  So  in  Breslau  all  dwelling  rooms  must  have 
a  floor  area  of  at  least  5  sq.  m.,  in  Gorlitz  and  Liegnitz,  an  area  of  7 
sq.  m.  with  a  breadth  of  1.80  m.,  in  Magdeburg  a  minimum  width  of 
i. 80  m.  Cassel  and  Wiesbaden  require  7  sq.  m.  of  area,  with  from 
2  to  i. 80  m.  least  dimension.  Diisseldorf,  an  area  of  10  sq.  m.  with  a 
least  dimension  of  2  m.  The  Saxon  cities  have,  for  the  most  part, 
the  requirement  that  every  family  dwelling  must  have  one  room  that 
may  be  heated,  and  sleeping  rooms;  and  the  rooms,  in  several  cities, 
must  have  a  combined  area  of  30  sq.  m.  In  Altona  this  combined  area 
must  be  at  least  40  sq.  m.  The  Baden  building  ordinance  prescribes 
floor  area  of  10  sq.  m.  for  every  room  used  for  the  prolonged  stay 
of  men.  Mannheim,  however,  requires  more,  i.  e.,  for  the  kitchen  12 
sq.  m.  of  floor  area,  and  for  the  other  rooms,  15  sq.  m.  Finally 
Muhlhausen  (in  Alsace)  requires  dwelling  and  sleeping  rooms  to 
have  an  area  of  8  sq.  m.  and  a  width  of  not  less  than  2.20  m.  Several 
cities  prescribe  a  minimum  floor  area  for  servants'  rooms  only 
(Konigsberg,  Posen,  Brorriberg).  In  Konigshiitte,  Gleiwitz  and 
Beuthen  every  inhabited  room  must  have  an  air  space  of  at  least  10 
cb.  m.  The  clear  height  of  dwelling  rooms  in  the  Baden  cities  is  fixed 
at  3  m. ;  in  the  Prussian  cities  at  3  m." 

"The  Bavarian  Building  Ordinance  prescribes  for  the  Bavarian 
cities  2.70  m.,  the  Saxon  Building  Law  for  the  Saxon  cities  2.85  m. ; 
the  Wiirttemberg  cities  require  a  clear  height  of  at  least  2.50  m.  In 
the  Hessian  cities  the  clear  height  is  variously  fixed;  Offenbach  re- 
quires 3  m.,  Worms  2.40  m.,  Hamburg  2.50  m.,  Bremen  2.75  m., 
Liibeck  2.60  m.,  Muhlhausen  and  Metz  2.80  m.,  Colmar  2.60  m. 

"For  dwelling  rooms  in  the  roof  story,  and  often  also  for  dwell- 
ing rooms  in  cellar  stories,  especially  in  the  cities  that  prescribe  for 
dwelling  rooms  generally  3  m.,  lesser  heights  are  as  a  rule  allowed. 

"The  size  of  window  surface  in  the  cities  here  treated  of  is  in 
general  regulated  in  two  ways;  either  the  window  must  bear  a  cer- 
tain relation  to  the  floor  surface  of  the  room,  or  the  cubic  content 
for  each  square  meter  of  window  surface  is  fixed.  The  relation 
of  window  surface  to  floor  area  is  generally  a  tenth.  An  eighth  is 
required  by  Stettin,  Posen,  Magdeburg,  Hanover,  Liineburg,  Dort- 
mund, Hagen,  Diisseldorf,  Essen,  Barmen,  Crefeld,  Cologne;  a  twelfth 
by  Meissen.  Those  cities  which  for  i  sq.  m.  of  window  surface  re- 
quire a  given  cubic  content  of  the  room  in  question,  demand  gen- 
erally 30  cb.  m.  of  content  for  i  sq.  m.  of  window  surface.  In  Aachen 

**  With,  however,  many  exceptional  cases,  where  less  is  usually  required. 


ZONING  IN  EUROPE  227 

it  is  20  to  i;  in  Munich,  Gladbach,  50  to  i.  Often  the  requirements 
for  roof  and  cellar  dwellings  are  less.  A  number  of  cities  have  no 
provision  with  regard  to  the  proportion  of  window  surface  to  floor 
area  or  cubic  content  of  rooms. 

"Roof  dwellings  as  a  rule  must  be  located  only  immediately  over 
the  topmost  story,  and  under  the  roof  beams;  but  not  one  over  an- 
other. In  addition  the  construction  of  dwelling  and  sleeping  rooms 
in  the  roof  story  is  invariably  subject  to  a  number  of  further  pro- 
visions, especially  with  regard  to  the  greatest  height  of  the  floor 
of  the  roof  story  above  the  ground,  and  the  construction  of  stairs 
leading  to  the  roof  story.  .  .  . 

"For  dwellings  and  dwelling  rooms  in  the  cellar  story,  when  not 
forbidden  entirely,  the  provisions  almost  universally  are  with  regard 
to  the  distance  of  their  floors  from  the  surface  of  the  earth  and  their 
elevation  above  high  water  mark.  As  a  rule  the  floor  of  cellar  rooms 
must  not  ...  be  more  than  50  c.  m.,  under  the  surface  of  the  earth, 
and  must  be  at  least  30-40  c.  m.  above  high  water  mark.  ...  In  a 
number  of  cities  cellar  dwellings  are  forbidden,  but  the  construction 
of  single  dwelling,  sleeping  or  working  rooms  is  allowed  under  cer- 
tain conditions.  .  .  . 

"Most  of  the  Saxon  cities  provide  that  for  every  apartment  there 
shall,  as  a  rule,  be  a  toilet.  In  Harburg  and  Liineburg  there  shall  be 
a  toilet  for  every  two  apartments.  In  Hanover,  for  every  three  apart- 
ments. In  Dortmund,  Gelsenkirchen,  Bochum,  Hagen  and  the  cities 
in  the  district  of  Diisseldorf,  in  Cologne,  Bonn,  Muhlheim-on-the- 
Rhine,  Aachen,  Coblenz,  Munich,  Wiirzburg  and  Brunswick,  there 
shall  be  a  toilet  for  every  dwelling  house.  In  Hamburg  there  shall 
be  a  toilet  for  every  twelve,  in  Strassburg  (in  Alsace)  for  every 
fifteen  persons.  .  .  . 

"The  regulations  for  boarding  houses  are  divided  into  those  which 
regulate  the  air  space  and  floor  area  for  lodging  house  keepers  and 
lodgers,  and  those  which  regulate  them  for  lodging  house  keepers 
only.  ...  In  most  cities  an  air  space  of  10  cb.  m.  with  a  floor 
area  of  from  3  to  4  sq.  m.  is  required.  .  .  ." 

No.  2.    THE  FRANKFORT  BUILDING  ORDINANCES 

The  principal  building  ordinances  of  Frankfort  are  two  in  number. 
The  first,  often  referred  to  as  the  building  ordinance,  applies  to  the 
entire  city;  the  second  applies  only  to  the  "outer"  city,  as  the  city 
outside  the  "old"  or  "inner"  city  is  called,  and  is,  as  a  rule,  more 
restrictive  in  those  matters  to  which  it  relates  than  the  first  ordi- 
nance, and  therefore  in  these  matters  practically  superseded  the  first 
ordinance  in  this  outer  city.  Thus  the  first  ordinance  serves  a  double 
purpose;  it  is  in  certain  matters  the  uniform  rule  for  the  entire  city, 


228          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

and  in  others  is  practically  the  ordinance  for  the  inner  zone;  while 
the  second  ordinance  is  the  zoning  ordinance  for  the  rest  of  the  city.*1 
A  translation  of  those  parts  of  these  ordinances  of  most  interest 
to  city  planners  in  this  country,  and  a  summary  of  the  remainder, 
follows."  In  addition,  in  another  note  an  official  table  setting  forth 
in  condensed  form  for  purposes  of  comparison  the  principal  zoning 
provisions  for  the  entire  city,  with  a  similar  statement  of  the  zoning 
regulations  of  Karlsruhe,  Munich  and  Cologne,  and  the  Diisseldorf 
regulation  in  detail,  art  given." 

BUILDING  ORDINANCE  FOR  THE  CITY  OF 
FRANKFORT-ON-THE-MAIN 


BUILDING  PERMITS,  EXEMPTIONS,  APPEALS 
*  SECS.  1-6. 

A  building  permit  is  required  from  the  building  police*4  for  the 
erection  of  every  new  building,  temporary  or  permanent,  and  every 
addition,  reconstruction  or  substantial  repair  to  an  existing  building; 
for  every  change  in  the  use  of  buildings,  front-gardens  and  side  set- 
backs; for  every  destruction  of  buildings  or  parts  of  the  same;  for 
enclosures;  for  electrical  and  gas  connections,  etc. 

In  applying  for  a  permit,  drawing,  etc.,  must  be  submitted. 

The  owners  of  adjoining  lots  must  be  given  notice  of  all  but 
strictly  internal  changes  and  may  maintain  objections  if  their  rights 
are  invaded. 

The  building  police  has  the  power  to  grant  all  the  exceptions  to 
and  exemptions  from  the  provisions  of  the  two  building  ordinances, 
provided  for  in  them. 

*  Summarized. 

*  The  authority  for  passing  these  ordinances  will  be  found  in  sees.  5 
and  6  of  the  (Prussian)  ordinance  of  September  20,  1867,  "iiber  die  Polizci- 
verwaltung  in  den  neuerworbenen  Landcstluilen" ;  and  sees.  143  and  144 
of  the  Prussian  Statute  "iiber  die  Allgemeine  Landesverwaltung"  of  July 
30,    1883.     The   Frankfort   ordinances    will   be    found   in   the    Frankfort 
"Anzeige  Blatt  der  Stadtischen  Behdrdc*,"  1912,  p.  533;   1910,  pp.  351, 
1093;  1911,  pp.  81,  194,  564,  718;  1012,  p.  487.    The  official  edition  of  these 

ordinances,  with  numerous  appendices,  and  a  map,  is  printed  and  sold  by 
Gebriidcr  Knauer,  Frankfort. 

**  An  amendment,  adopted  December  18,  1918,  gives  the  building  au- 
thorities power  to  allow  numerous  exemptions  from  the  provisions  of  the 
ordinances  for  a  limited  period  on  account  of  the  housing  shortage  due 
to  the  war.  These  exemptions  permit  cheaper  construction,  with  more 
intensive  occupancy. 

"See  pp.  251  ff.  and  262 ff. 

"In  Frankfort  the  executive  branch  of  the  City  Council  (Magistral! 
is  constituted  building  police. 


ZONING  IN  EUROPE  229 

The  doings  of  the  building  police  are  subject  to  exception  and 
appeal.18 

ii 

INSPECTION 

*  SEC.  7.    Inspection  before  Occupation. 

in 

MISCELLANEOUS 

/.    Street  and  Building  Lines,  etc. 

*  SEC.  8.     Before  the  erection  of  structures,  etc.,  the  building  and 
street  lines,  grades,  etc.,  must  be  fixed.     Encroachments  may  be  per- 
mitted for  a  fixed  period,  or  until  permit  for  same  is  revoked.     Set- 
backs may  be  permitted  if  exposed  walls  are  finished  like  faqades. 
Subsidiary  buildings  must  be  placed  in  the  rear,  or  those  parts  visible 
from  the  street,  finished  like  faqades. 

?..    Setback  of  Buildings  from  Side  Boundary  and  Each  Other 

*  SEC.  9.     When,  within  the  depth  of  a  new  building,  addition  to  an 
existing  building,  etc.,  to  be  erected  on  the  lot  in  question,  there  is  no 
building  on  the  neighboring  lot,  then  the  new  structure  may  be  placed 
either  immediately  on  the  boundary  or  with  a  setback  from  it  of  at 
least  2.50  m. ;  except  that,  if  that  neighboring  lot  is  less  than  3  m. 
wide,  the  setback  must  be  at  least  2.50  m. 

When,  within  such  depth,  there  is  a  building  on  the  neighboring 
lot,  located  on  the  boundary,  then  the  new  structure  must  be  erected 
on  the  boundary  or  with  a  setback  of  at  least  5  m.  from  it;  if  this 
neighboring  building  is  set  back  5  m.  or  more,  the  new  structure  may 
be  on  the  boundary;  if  less  than  5  m.  that  setback  must  be  2.50  m. 

Buildings  on  the  same  lot  must  be  erected  either  against  one  an- 
other, or  with  a  space  of  at  least  5  m.  between  them. 

There  are  certain  exceptions  and  modifications  with  relation  to 
rear  buildings,  buildings  apparently  not  permanent,  buildings  not 
more  than  5  m.  in  height  to  ridge  pole,  and  where  hardship  would 
be  caused. 

In  so  far  as  a  side  wall  is  visible  from  the  street  it  must  be  finished 
as  a  facade  and  not  left  rough. 

*  Summarized. 

35  See  the  Allgemeines  Landesverwaltungsgesetz  (Prussia)  of  July  30, 
1883  (especially  sees.  127-131,  133)  (Gesetz  Sammlung,  p.  195),  and  sec. 
145  of  the  (Prussian)  Zustandigkeitsgesetz  (Gesetz  Sammlung,  p.  237). 


330  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

J.    Court  Space 
SEC.  10. 

*  i.    New  structures   shall   not  cover   more  than   j£   of  the   lot 
back  of  the  building  line ;  but  on  corner  lots  improved  with  one  build- 
ing Yb  is  allowed.     Areas  not  built  over,  which   from  situation  or 
shape  are  useless  for  light  and  air,  shall  not  be  reckoned  as  part  of 
free  area.    The  projection  of  cornices  to  50  cm.,  light  and  air  shafts, 
steps  to  ground  floor  height,  verandas  not  to  exceed  12  sq.  m.,  etc., 
into  or  over  the  prescribed  court  is  allowed. 

2.  Lots  which  on  July  15,  1884,  were  already  more  intensively 
built,  may   (without  prejudice  to  the  provisions  of  sec.  33),  by  way 
of  exception  be  built  up  again  to  the  mass  of  the  existing  buildings, 
when  a  suitable  development  of  the   lot  is  not  otherwise  possible. 
Small  out-buildings  of  one  story  are  by  exception  permitted  beyond 
the  area  already  built  over  when  conditions  as  to  light,  air  and  safety 
from  tire  are  not  thereby  made  worse. 

In  the  case  of  lots  of  little  depth,  and  especially  of  narrow  lots 
between  two  streets,  all  court  space  may  by  exception  be  omitted  if 
the  windows  of  all  dwelling  and  sleeping  rooms  give  on  the 
and  provision  is  made  for  sufficient  light  and  air  in  kitchens,  hails, 
stairs  and  toilets. 

These  exceptions,  however,  are  permissible  only  when  the  street 
on  which  the  lot  abuts  has  a  width  of  more  than  8  m.  and  cannot  be 
granted  at  all  for  the  built  up  parts  of  lots,  less  intensively  developed, 
that  were  subdivided  after  July  15,  1884. 

3.  When  the  ground  story  is  used  for  stores,  store  rooms,  and 
similar  business  rooms,  together  with  subsidiary  rooms,  then  the  lot, 
to  ground  story  height,  may  be  built  over,  up  to  the  entire  area  of 
the  lot,  if  the  area  covered  by  the  upper  stories  is  diminished  accord- 
ingly.    Under  the  same  conditions  the  built  up  area  on  the  upper 
stories  may,  with  the  consent  of  the  building  police,  be  proportionately 
increased. 

The  greatest  permissible  cubic  mass  of  structure  resulting  from 
the  area  that  may  be  covered  (sec.  10)  and  the  permissible  height 
(sec.  ii )  shall  in  no  case  in  the  aggregate  be  exceeded. 

4.  In  the  case  of  rear  buildings,  dwellings  for  more  than  three 
families  shall  be  provided  for  only  when  "Ho  of  the  entire  lot  re- 
mains uncovered.     Exceptions  are  permissible  under  favorable  court 
conditions. 

5.  Kvery  court  must  be  provided  with  an  entrance  sufficient  in 
the  judgment  of  the  building  police. 

6.  When  for  the  purpose  of  gaining  the  court  area  prescribed 
above,  parts  of  a  neighboring  lot  already  built  up  are  joined  to  the 
building  lot  in  question,  then  these  parts  so  added  can  be  taken  into 

*  Summarize*!, 


ZONING  IN  EUROPE  231 

account,  in  favor  of  that  lot,  only  when  by  reason  of  the  diminution 
of  the  court  area  of  the  neighboring  lot,  it  is  not  reduced  below  the 
prescribed  size. 

4.    Building  Heights 
SEC.  ii. 

(a)     Buildings  on  the  Street 

1.  The  height  of  a  building  on  streets  of  less  than  9  m.  in  width, 
must  not  exceed  n  m.,  on  wider  streets  must  not  exceed  the  street 
width  by  more  than  2  m.  and  in  no  case  shall  exceed  20  m. 

A  building  height  not  to  exceed  3  m.  more  than  the  street  width 
can,  as  an  exception,  be  allowed  on  streets  of  the  width  of  9  m.  and 
more  when  this  greater  height  is  not  used  to  construct  an  additional 
story  not  otherwise  permissible. 

2.  In  dead  end  streets  the  height  of  the  building  closing  the 
street  is  governed  by  the  width  of  the  street  at  the  faqade  line  of 
the  new  building. 

3.  In  the  case  of  corner  lots  on  streets  of  different  width,  the 
width  of  the  wider  street  fixes  the  building  height  also  on  the  nar- 
rower street;  but  only  for  an  extent  of  faqade  which  does  not  exceed 
twice  the  width  of  the  narrower  street ;  and  in  streets  of  less  than 
8  m.  not  more  than  12  m.;  and  in  no  case  more  than  20  m.     Corner 
lots  are  such  as  abut  on  at  least  two  streets,  and  of  which  the  street 
(or  building)  lines  enclose  an  angle  of  at  most  135  degrees. 

4.  In  the  case  of  buildings  between  two  streets,  corner  houses, 
and  so-called  house  islands  on  streets  of  varying  width,  a  single  aver- 
age height  for  all  faqades  may  be  allowed  instead  of  different  heights. 

*  5-7.     Rules  for  measuring,  height,  etc.     By  "height"  is  meant, 
generally,  height  to  principal  cornice. 

8.  The  court  faqade  of  a  building  shall  not  exceed  the  height 
prescribed  for  its  street  faqade,  or  the  height  of  walls  permitted  by 
sec.  33,  if  this  is  less  than  the  permissible  building  height. 

If  the  width  of  the  court,  measured  perpendicularly  to  the  faqade, 
is  materially  more  than  the  width  of  the  street,  and  light  and  air 
conditions  are  particularly  favorable,  then  as  an  exception  a  greater 
height  of  court  faqade  may  be  permitted. 

(b)     Buildings  on  Courts     (Rear  Buildings) 

i.  The  height  of  a  rear  building  on  a  court  of  less  than  6  m. 
in  width  shall  not  exceed  8  m.,  and  on  a  court  of  greater  width  shall 
not  exceed  the  width  of  the  court  plus  2  m.  In  other  respects  the 
provisions  of  (a)  1-5,  of  this  paragraph  apply,  the  average  width  of 

*  Summarized. 


232  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

all  court  areas  situated  in  front  of  the  rear  building,  up  to  a  maximum 
depth  of  20  m.  controlling,  instead  of  the  street  width. 
*  2.     Rules  for  Measuring  Height. 

3.  One  story  buildings  which  are  not  higher,  to  the  ridge  pole  of 
the  roof  than  5  m.  and  which  do  not  cover  with  buildings  more  than 
25  sq.  m.  may  be  excluded  in  calculating  court  width. 

(c)     Exceptions 

1.  When  the  application  of  the  above  provisions  to  new  buildings 
on  lots  which  have  already  been  built  up  might  cause  a  considerable 
diminution  in  the  value  of  the  lot,  then,  as  an  exception,  the  new 
buildings  may  be  allowed  to  attain  the  height  of  the  old  buildings. 

2.  For  vertical  projections  which  are  intended  only  for  ornament 
or  which,  because  of  the  special  purpose  for  which  they  are  intended 
(e.  g.,  water  towers,  silos,  etc.),  absolutely  require  a  greater  height, 
a  greater  height  may,  as  an  exception,  be  permitted,  within  the  total 
length  permitted  by  sec.  12,  no.  6. 

3.  The  right  to  grant  exceptions  for  churches,  public  buildings, 
as  well  as  monumental  private  buildings,  is  also  reserved. 

5.    Roofs  and  Vertical  Roof  Projections 
SEC.  12. 

1.  The  height  of  the  roof  must  not  exceed  the  permissible  height 
of  the  building  by  more  than  half  the  street  width,  and  in  no  case  by 
more  than  9  m.     In  the  case  of  streets  less  than  10  m.  in  width,  a 
height  of  5  meters  is  permitted. 

2.  The  slant  of  the  roof  shall  not  exceed  an  angle  of  45  degrees, 
whose  apex  lies  at  the  point  of  intersection  of  the  line  of  permissible 
building  height  and  the  building  line.     Within  the  permissible  height 
it  shall  not  exceed  an  angle  of  80  degrees. 

For  roofs  on  courts  the  permissible  height  of  walls  on  courts,  in 
accordance  with  sec.  33,  takes  the  place  of  the  height  of  the  building, 
if  this  wall  height  is  less  than  the  permissible  building  height. 

The  inclination  of  the  roof  above  the  break  in  the  roof,  except 
in  single  family  houses,  shall  not  in  general  exceed  the  angle  of  45 
degrees;  and  in  dwelling  houses  the  room  over  the  joists  is  to  be  so 
arranged  that  its  use  for  dwelling  purposes  for  any  length  of  time 
is  impossible. 

3.  On  streets  wider  than  13  m.,  for  the  roof  giving  on  the  street, 
a  steeper  angle  is  allowed  within  the  quadrant,  whose  radius  is  not 
more  than  one-third  the  width  of  the  street,  and  in  no  case  more 
than  Q  m. ;   and  whose  middle  point   is  at  the  permissible   building 
height.     The  projection  of   the   chief   cornice   may   be   outside   this 
quadrant. 

*  Summarized. 


ZONING  IN  EUROPE  233 

4.  The  roof  of  a  corner  house,  situated  on  streets  of  different 
widths,  can  attain  on  the  narrow  street,  for  a  length  of  facade  which 
does  not  exceed  twice  the  width  of  the  narrow  street,  that  height 
and  angle  which  is  allowed  on  the  wider  street.    On  streets,  however, 
of  less  width  than  8  m.,  this  length  of  faqade  shall  not  be  more  than 
12  m.,  and  in  no  case  more  than  20  m. 

5.  For  the  roof  of  a  building  situated  behind  the  building  line, 
the  building  police  may  allow  a  correspondingly  greater  height  and 
a  greater  diameter. 

6.  The  total  length  of  the  projections  above  and  behind  the  per- 
missible roof,  like  gables,  roof  windows  and  the  like,  must  not  exceed 
half  the  length  of  the  faqade  in  question.    In  so  far  as  they  are  sit- 
uated above  the  break  irt  the  roof  they  are  permissible  only  on  special 
license. 

7.  The  right  to  make  exceptions  in  the  case  of  churches,  public 
buildings,  monumental  private  buildings,  etc.,  is  reserved. 

8.  A  permit,  revocable  at  any  time,  may  be  given  for  signs  at- 
tached to  the  building,  projecting  from  the  roof,  illuminated  adver- 
tising devices,  and  the  like. 

The  right  is  reserved  to  make  special  provisions  with  regard  to 
their  erection,  in  each  case,  in  accordance  with  special  local  condi- 
tions. 

6.  '  Projections 

*  SECS.  13-16.  As  a  rule  projections  over  the  building 'line  are  allowed 
only  on  special  permit  from  the  building  police,  which  is  at  all  times 
revocable.  There  are,  however,  certain  projections  which,  subject 
to  the  rights  of  the  city  as  owner  of  the  street,  the  building  police 
may  allow  as  a  matter  of  routine ;  such  as  steps,  pilasters,  and  other 
ornamentation,  signs,  marquises,  open  and  closed  balconies,  etc.  The 
distance  that  the  projection  may  go  beyond  the  building  line,  the  mass 
of  projection  in  proportion  to  the  width  of  the  building,  and  the  dis- 
tance from  the  neighbors'  boundary,  are  limited.  Thus  open  balconies 
and  piazzas  must  be  at  least  3  m.  above  the  sidewalk  and  2.50  m. 
from  the  neighboring  boundary,  unless  the  neighbor  consents  to  a 
less  distance;  their  projection  must  not  exceed  1.50  m. ;  and  their  area 
must  not  exceed  the  product  of  l/3  the  length  of  the  faqade,  by  Via 
the  width  of  the  street,  or  at  most  1.50  m. 

Only  signs  that  are  not  grossly  disfiguring  shall  be  affixed  to  front 
garden  enclosures.  Projections  beyond  the  front  garden  line  are 
allowed,  much  as  projections  over  the  building  line  are  permitted. 

*  Summarized. 


234  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

7.     Overhangs 

*  SECS.  8-16.    Structural  Provisions. 

*  SEC.  17.     Stories  of  buildings  overhanging  the  building  line  must, 
as  a  rule,  be  done  away  with  when  reconstruction  occurs. 

*  SECS.  18-30.     Provisions  with  regard  to  strength  and  choice  of  ma- 
terial, protection  against  fire,  necessary  stairs  and  exits,  inspection 
before  occupancy,  etc. 

17.    Construction   of  Dwelling   and   Work   Rooms 
Kitchens  and  Toilets 

(a)     Number  and  Situation  as  to  Height  of  Stories  for  Residence 

SEC.  31.  Dwelling  houses,  in  addition  to  the  ground  storv,  shall  have 
not  more  than  four  stories  and  the  roof  story;  independent  rear, 
side  and  transverse  buildings  shall  have  not  more  than  three  stories 
in  addition  to  the  ground  story  and  the  roof  story.  Dwellings  in 
the  roof  story  are  not  permitted  in  houses  with  five  stories.  Excep- 
tions may  be  allowed  on  special  permit,  at  all  times  revocable,  for 
janitors'  dwellings;  which  shall  comprise  not  more  than  two  rooms, 
with  kitchen  and  incidental  rooms. 

(b)     Height  of  Dwelling.    Sleeping  and  Work  Rooms  and  Kitchens 

SEC.  32. 

1.  Dwelling  and  sleeping  rooms,  as  well  as  kitchens,  must  in  the 
roof  story  have  a  clear  height  of  2.60  m. ;  in  the  other  stories  of  3  m. ; 
wash  rooms,  as  a  rule  2.50  m. 

2.  For  rooms  intended  for  the  stay  of  many  human  beings  the 
building  police  may  prescribe  a  greater  height. 

(c)     Lighting  and  Ventilation 

SEC.  33. 

1.  All  dwelling,  sleeping  and  work  or  business  rooms  (in  which 
store  rooms  are  included,  if  human  beings  are  employed  in  them  for 
any  considerable  length  of  time)   as  well  as  all  kitchens  and  toilets, 
must   be   provided  with   windows   which   make   possible   a   sufficient 
lighting  and  ventilation  of  the  rooms. 

The  size  of  the  windows,  with  the  exception  of  toilet  window x 
shall  be  at  least  i  sq.  m.  for  every  30  cb.  c.  m.,  capacity  of  the  rooms; 
and  in  the  roof  story,  1/2  sq.  m.  to  30  cb.  c.  m. 

2.  The  windows  must  receive  air  and  light  either  immediately 
from  the  street  or  from  a  court  (garden) ;  and  in  the  latter  case  the 
following  provisions  shall  be  observed: — 

*  Summarized. 


ZONING  IN  EUROPE  235 

The  windows  of  dwelling,  sleeping,  and  work  or  business  rooms, 
and  kitchens,  must  not  be  opposite  a  wall  higher  than  n  x  d  or  n  X  a, 

4  ~T~ 

when 

a  equals  the  surface  area,  in  square  meters,  of  the  court  or  gar- 
den lying  before  the  window  wall  in  question ; 

d  equals  the  distance  of  the  wall,  measured  at  the  middle  of  the 
window,  in  meters; 

p  equals  the  periphery  of  the  court  or  garden,  in  meters; 

n  equals  6  in  the  inner  city; 

n  equals  5  in  the  outer  city. 

The  builder  has  his  choice  between  these  two  formulae.  The 
height  is  measured  from  the  under  surface  «of  the  window  lintel,  or 
if  this  is  higher  than  the  under  surface  of  the  ceiling  of  the  room 
to  be  lighted,  from  the  under  surface  of  the  ceiling,  to  the  upper  sur- 
face of  the  chief  cornice  of  the  wall  lying  opposite. 

3.  When  the  window  is  situated  opposite  the  boundary  of  the 
neighboring  lot,  that  lot  (subject  to  the  provisions  of  7  and  irrespec- 
tive of  whether  or  how  that  lot  is  built  up),  is  considered  as  built 
up  with  a  party  wall  whose  height  is  equal  to  the  greatest  height 
permissible  under  sec.  na  for  a  front  building  on  the  neighboring 
lot.    When,  however,  the  boundary  is  not  built  up  with  a  party  wall 
and,  according  to  building  police  regulations,  cannot  be  so  built  up, 
then  it  is  to  be  considered  that  there  is  a  party  wall  opposite  on  the 
neighboring  lot  built  to  the  height  and  with  the  side   setback  pre- 
scribed as  aforesaid  by  the  building  police  regulations.     If  the  wall 
of  the  building  in  which  the  window  is  to  be  placed  is  lower  than  the 
wall  opposite,  then  half  the  difference  in  height  shall  in  the  above 
calculation  be  deducted  from  the  height  of  the  opposite  wall. 

4.  The  court  situated  in   front  of  the  windows  must  measure, 
at  the  height  of  the  floor  of  the  room,  at  least  15  sq.  m. ;  the  distance 
of  the  wall  lying  opposite,  at  least  4  m.  in  the  inner  city,  and  5  m. 
in  the  outer  city;  and  the  court  measurement  parallel  to  the  window, 
at  least  3  m. 

5.  In  reckoning  the  area  and  the  periphery,  parts  of  the  court 
may  be  left  out  of  the  reckoning  when  the  reckoning  is  not  for  a 
window  which  gives  on  the  part  of  the  court  to  be  so  left  out. 

6.  If  a  room  has  windows  which  fulfil  the  above  requirements, 
more  windows  may  be  constructed  without  restriction. 

7.  When  neighboring  courts   are  united   and   security   is  given 
to  the  municipality  of  the  permanence  of  this  union,  then  the  com- 
bined area   and  the  combined  periphery   of  the   united   courts,   re- 
spectively, the  distance  to  the  neighboring  walls  may  be  taken  in 
calculation;  but  in  this  case  in  the  formulae,  for  n  instead  of  6,  5, 
shall  be  taken;  and  instead  of  5,  4. 

Both  numbers  are  to  be  reduced  to  3,  if  the  windows  serve  for 


236  THE  LAW  OF  CITY  PL -\X\TXC;  AND  ZONING 

rooms  that  in  whole  or  in  part  are  situated  more  than  20  m.  behind 
the  building  line. 

The  least  setback  of  the  windows  from  the  boundary  must,  how- 
ever, in  all  cases  equal  2.50  m. 

8.  Rooms  which  are  so  situated  that  they  can  be  lighted  imme- 
diately from  above  may  be  lighted  by  skylight,  when  arrangements 
are  made  which  in  the  opinion  of  the  building  police  safeguard  a 
sufficient  circulation  of  air  and  when  the  clear  size  of  the  skylight 
is  equal  to  at  least  l/%  of  the  floor  surface  of  the  room  to  be  lighted. 

9.  In  cases  in  which,  in  the  opinion  of  the  building  police,  the 
fulfilment  of  the  provisions  of  this  paragraph  would  cause  unusual 
hardship,  especially  in  the  case  of  lots  that  on  April   i,  1912,  were 
already  built  up,  the  building  police  may  allow  appropriate  exceptions 
to  such  provisions  when  the  conditions  as  to  light  and  air  are  in  other 
respects  favorable. 

10.  Windows  in  toilets  are  permitted  to  give  on  a  court  (garden) 
only  when  the  court  (garden)  has,  with  a  least  dimension  of  not  less 
than  2.50  m.,  an  area  of  at  least  10  sq.  m.  (comp.  however  sec.  37, 
no.  5). 

(d)     Rooms  in  Cellar 
SEC.  34. 

*  PARS.  1-5.    Dwelling  rooms  not  allowed,  and  other  rooms  where 
human  beings  are  employed  for  any  length  of  time  only  if  of  a  mini- 
mum clear  height  of  2.80  m.  with  ceilings  at  least  1.50  m.  above  sur- 
face, windows  a  height  of  at  least  1.20  m.  and  floor  at  most  1.30  m. 
below  surface.     Exceptions  allowed  for  certain  industries,  and  jani- 
tor's quarters   in  public  and  pretentious  private   buildings,   if  com- 
prising not  more  than  two  rooms,  with  kitchen  and  other  accessories. 

(e)     Dwellings  on  Ground  Floor 
SEC.  35. 

1.  The  floor  of  dwellings  on  the  ground  floor  must  be  situated 
at  least  50  cm.  above  the  paved  surface  of  the  street  and  the  adjoining 
land. 

2.  If,  however,  there  is  a  cellar  or  air  space  under  the  floor,  a 
height  of  at  least  30  cm.  above  the  street  surface  and  the  adjoining 
earth  is  permissible. 

3.  If  the  court  slopes  down,  the  construction  of  dwellings  on  the 
ground  floor  at  a  less  height  of  floor  may  under  otherwise  favorable 
conditions,  as  an  exception,  be  authorized  by  the  building  police. 

(f)     Dwelling  and  Living  Rooms  in  the  Roof  Story 
SEC.  36. 

i.     Dwellings  and  single  dwelling  rooms   in  the   roof  story  are 
allowed  only  under  the  joists. 

*  Summarized. 


ZONING  IN  EUROPE  237 

2.  The  floor  of  dwelling  rooms  in  the  roof  story  must  not  be 
situated  more  than  30  cm.  above  the  permissible  building  height. 

*  PARS.  3-10.     Structural  provisions. 

(g)     Toilet  Rooms  and  Bath  Rooms 
SEC.  37. 

Every  apartment,  as  a  rule,  must  have  a  separate  toilet,  with  a 
window  on  the  outer  wall  of  the  house ;  and  an  area  of  at  least  I  sq.  m. 

(h)     Safety  from  Fire     (sec.  38) 
*-i8-25.     Structural  Provisions  (sees.  39-49) 

*  26.     Construction  of  Theatres,   Circus  Buildings,  and  Public  As- 

sembly Rooms 

*  SEC.  50.  For  the  above  mentioned  structures,  in  addition  to 
the  provisions  of  the  building  ordinance,  the  ordinances  issued  from 
time  to  time  by  the  district  police  apply. 

*  IV.  COMPLETION    AND    MAINTENANCE   OF    BUILDINGS 

(sees.  51-52) 

*  V.  ELECTRICAL   APPLIANCES    (sCC.    53) 

*  VI.  GAS    CONNECTIONS     (sCCS.     54-56) 

*  VII.  ENCLOSURES   AND   FRONT   GARDENS    (seCS.    57-63) 

*  VIII.  SPECIAL    PROVISIONS    FOR    SINGLE    DISTRICTS 

(sees.  64-65)  M 

*  IX.  PENALTIES  (sec.  66) 

*  X.  REPEALS     (sec.    67) 

POLICE  ORDINANCE,  OF  APRIL  STH,  1910,  WITH  REGARD  TO  BUILDING 
IN  THE  OUTER  CITY,  FRANKFORT-ON-THE-MAIN 

f  BOUNDARIES  OF  THE  OUTER  CITY 
Sec.  i 

DIVISION    INTO    ZONES   AND   DISTRICTS 

Sec.  2 

I.  In  the  outer  city  including  the  former  rural  administrative 
district,36*  the  following  districts  and  zones  are  created : 

*  Summarized. 
t  Omitted. 
"'  See  p.  215. 

364  This  district,     shortly  before  1910,  had  been  taken  into  the  city.    It 
consisted  partly  of  open  country,  partly  of  scattered  villages. 


238  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

1.  Residential  districts  which  are  especially  devoted  to  residential 
uses  and  in  which  a  quiet  residence  shall  be  assured. 

2.  Mixed  districts  which  shall  serve  equally  for  residence  and 
industry. 

3.  Suburban  house  districts  which  are  intended  for  an  open  villa- 
like  development. 

4.  Factory  districts  in  which  industrial  enterprises  shall  be  facili- 
tated and,  as  far  as  possible,  brought  together. 

II.  In   the   residential   districts  and   in  the  mixed  districts  are 
created : 

1.  An  inner  zone. 

2.  An  outer  zone. 

3.  A  rural  district  zone. 

III.  The  divisions  of  the  districts  and  the  zones  run,  as  a  rule, 
through  the  middle  of  the  streets  as  constructed  or  proposed.     In  so 
far  as  the  boundary  lines  cut  through  lots  the  provisions  governing 
the  district  or  the  zone  in  which  the  street  front  of  the  lot  lies  con- 
trol the  building  up  of  the  lot ;  and  in  so  far  as  the  boundaries  cut 
through  the  street  frontage,  the  provisions  governing  the  zone  and 
district  in  which  the  greater  part  of  the  street  front  lies,  are  con- 
trolling.    If,  however,  one  part  of  the  lot  is  situated  in  the  mixed 
district  and  another  in  the  residential  district,  then  the  building  up 
of  the  lot  in  accordance  with  the  provisions  of  the  mixed  district  is 
permissible  only  when  the  part  situated  in  the  residential  district  is 
not  more  than  a  quarter  of  the  entire  lot. 

Sec.  3 

The  boundaries  and  zones  appear  in  detail  on  the  map  which  is  a 
part  of  this  ordinance. 

A  copy  of  the  map  on  a  larger  scale  is  on  exhibition  at  the  office 
of  the  building  police.  On  the  map  are  marked, 

I.  Residential  districts: 

1.  Of  the  inner  zone  with  A. 

2.  Of  the  outer  zone  with  B. 

3.  Of  the  rural  district  zone  with  C.OT 

II.  Mixed  districts: 

1.  Of  tin   inner  zone  with  D. 

2.  Of  the   outer  zone   with    K. 

3.  Of  the  rural  di'strict  zone  with  F. 

III.  The  suburban  house  districts  with  G. 

IV.  Industrial  districts  with   H. 
V.     The  inner  city  with  I. 

"  Sec  note  36  on  page  237. 


ZONING  IN  EUROPE  239 

SIDE   SETBACK 

Sec.  4 

I.    Side  Setback,     i.    Size 

New  buildings,  additions  and  changes  which  in  the  judgment  of 
the  building  police  equal  in  extent  new  construction  must  in  resi- 
dential districts  be  erected  with  a  setback  from  all  neighboring  bound- 
aries which  in  the  inner  zone  shall  equal  3  m. ;  in  the  outer  zone, 
the  rural  district  zone  and  the  suburban  house  district,  4  m.  In  the 
mixed  districts  of  the  inner  and  outer  zone  which  by  the  city  plan 
are  provided  with  front  gardens,  a  setback  also  of  3  m.  is  in  the 
case  of  front  buildings  to  be  observed. 

Buildings  and  groups  of  buildings  on  the  same  lot  must  preserve 
a  setback  from  one  another  twice  that  provided  in  par.  i ;  but  for 
sheds  and  other  subordinate  buildings  a  setback  of  5  m.  is  sufficient 
when  their  area  does  not  exceed  twenty-five  sq.  m.  nor  their  height, 
to  the  ridge  of  the  roof,  6  m. 

2.     Use 

The  space  between  buildings  which  is  not  to  be  built  over  must 
not  be  used  for  industrial  purposes,  or  storage.  With  the  exception 
of  the  necessary  exits  and  entrances  this  space  must  to  the  depth  of 
the  front  house  be  laid  out  and  maintained  in  a  suitable  manner  as  a 
garden. 

II.    Exceptions 
.   To  the  provisions  of  I,  i  there  are  the  following  exceptions : 

i.    Party  Walls 

*  When  there  is  a  party  wall  existing  on  the  boundary  of  the  neigh- 
boring lot,  the  new  structure  on  the  lot  in  question  may  to  the  depth 
of  the  existing  wall  be  built  immediately  against  it;  but  if  not  so 
built  must  be  located  with  a  setback  from  the  neighboring  boundary 
of  twice  that  fixed  in  I,  i,  above. 

When  the  neighboring  party  wall  on  the  boundary  either  begins 
at  the  building  line  or  is  at  least  half  the  depth  of  the  existing  build- 
ing, then  the  wall  of  the  new  building  on  the  boundary  may  extend 
back  from  the  building  line  not  more  than  18  m.,  even  if  the  neighbor- 
ing party  wall  does  not  go  back  so  far.  In  the  residential  and  mixed 
districts  of  the  rural  district  zone  and  in  the  suburban  house  district, 
the  limit  is  15  m. 

*  Summarized. 


240  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  party  wall  of  the  new  building  may  be  broken  by  courts  only 
when  in  the  judgment  of  the  building  police  this  is  expedient. 

2.     Groups  of  Buildings 

a.  Groups  of  buildings  are  allowed  in  the  parts  of  the  mixed 
districts  specified  in  I,  i,  and  in  the  residential  district  of  the  inner 
zone,  with  an  unbroken  street  front  of  at  most  80  m.,  in  conformity 
with  the  provisions  as  to  party  walls  mentioned  in  i. 

This  extent  is  permitted  to  the  entire  depth  of  the  group  of  build- 
ings. 

For  the  purpose  of  erecting  a  permissible  group  of  buildings,  a 
house  may  be  built  with  a  party  wall  on  the  boundary  of  a  lot,  the 
lot  next  to  which  is  not  built  up.  In  this  case  a  party  wall  may  be 
erected  to  a  depth  not  to  exceed  18  m.  or,  in  the  rural  district  zone 
15  m.  Courts  breaking  the  wall  must  conform  to  the  provisions  of 
II,  i. 

b.  In  the  residential  districts  of  the  outer  and  rural  district  zones 
groups  of  buildings  in  accordance  with  the  provisions  of  a,  are  on 
permit  allowed;  with  the  further  condition  that  the  buildings  to  be 
erected  are  adapted  in  dimensions  to  those  already  existing  or  au- 
thorized, and  that  any  portion  of  party  walls  remaining  visible  shall 
be  finished  like  faqades. 

c.  In  the  suburban  house  district  at  most  two  houses,  in  accord- 
ance with  the  provisions  of  b,  may  on  permit  be  built  against  one 
another  to  a  depth  of  party  wall  of  15  m. 

d.  With  the  consent  of  the  executive  board  of  the  city  council " 
still  longer  groups  may  be  built  when,  by  the  disposition  of  the  open 
spaces,  especially  the  spaces  between  buildings,  the  access  of  sufficient 
light  and  air  for  the  interior  of  an  entire  block  surrounded  by  streets 
is  secured,  and  the  solid  building  of  the  entire  block  is  avoided. 

e.  For  single   family  houses — i.   e.,   houses   which   with   ground 
story  and  at  most  two  other  residential  stories,  are  constructed  for 
the  residence  of  only  one  family  and  under  these  conditions  licensed 
by  the  building  police — a  street  front  of  attached  houses  not  to  exceed 
150  m.  in  length  may  be  permitted. 

*  III.     Building   in  or  over   the  Setback  Space   between   Buildings 

Side  projections  are  allowed  much  as  projections  over  the  build- 
ing line  and  over  the  front  garden  line." 

*  Summarized. 

*  "Magistral." 

"  See  the  first  ordinance,  sec.  13  on  p.  233. 


ZONING  IN  EUROPE  241 

IV.    Setback  for  Offensive  Industries 

1.  Buildings  which  are  erected,  enlarged,  fitted  up  or  used  for 
the  conduct  of  factories,  workshops,  industries  which  cause  noise,  or 
fire  hazard,  or  are  offensive  on  account  of  smoke,  soot,  bad  smell,  or 
other  special  reasons,  must  be  located  at  a  distance  on  all  sides  from 
the  boundaries  of  the  lot  and  from  the  street  as  follows:  in  the  resi- 
dential district  of  the  inner  zone  at  least  20  m. ;  in  the  residential 
district  of  the  outer  zone  in  the  rural  district  zone  and  in  the  suburban 
house  zone,  at  least  40  m. 

By  obtaining  a  license,  relief  may  be  obtained  from  the  applica- 
tion of  this  provision  on  principal  traffic  streets  in  residential  dis- 
tricts for  the  erection  of  small  bakeries,  pastry  shops,  butcher  shops 
and  similar  small  business  enterprises." 

2.  The  setbacks  mentioned  in  i  are  also  to  be  observed  in  the 
case  of  stables  and  bowling  alleys.     For  the  latter  less  onerous  con- 
ditions may  be  granted  if  they  are  fitted  up  for  noiseless  operation. 

Private  stables  and  their  manure  piles  shall  set  back  at  least  5  m. 
from  all  neighboring  lot  lines,  and  be  ventilated,  to  the  satisfaction 
of  the  building  police,  from  the  roof.  With  the  permission  of  the 
adjoining  owner,  such  stables  may  be  located  with  an  outer  wall  on 
the  lot  line. 

3.  In  the  mixed  districts  buildings  which  are  erected,  enlarged, 
fitted  up  or  made  use  of  for  the  prosecution  of  enterprises  which, 
under  sec.  16  of  the  National  Industrial  Ordinance,41  require  a  special 
license  shall  keep  a  setback  of  at  least  10  m.  on  all  sides  from  the 
boundary  of  their  lot  and  from  the  street. 

HEIGHTS     OF    BUILDINGS     AND     NUMBER    OF     RESIDENTIAL     STORIES 

Sec.  5 

I.     i.     Width  of  Street 

By  street  width  is  meant  the  space  between  the  established  street 
lines,  or,  on  streets  With  front  gardens,  that  width  plus  2/3  of  the 
depth  of  the  front  garden. 

Areas  of  water,  escarpments,  quays,  railroad  rights  of  way,  etc., 
are  reckoned  as  parts  of  the  street  in  calculating  its  width ;  but  parks 
and  similar  public  open  spaces  which  immediately  adjoin  the  street, 
are  not  so  reckoned. 

**This  clause  was  added  by  police  ordinance  of  May  21,  1912. 
41  See  p.  210. 


242  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

2.    Heights  of  Buildings,  Front  Buildings 

Buildings  on  the  street  may,  on  streets  up  to  9  m.  in  width  be  in 
all  cases  9  m.  high ;  in  other  cases  not  higher  than  the  street  is  wide, 
(comp.  I,  I.)  In  no  case  may  buildings  exceed  in  the  residential 
and  mixed  districts  of  the  rural  district  zone,  16  m. ;  in  the  residential 
districts  of  the  outer,  and  the  inner  zone,  18  m.  Residential  build- 
ings may  not  in  any  case  exceed  18  m.  in  height. 

In  the  industrial  district  the  height  of  warehouses,  factories  and 
business  houses  may  exceed  the  street  width  by  not  more  than  2  m., 
but  may  in  no  case  exceed  20  m. 

3.    Rear  Buildings 

The  height  of  independent  rear  buildings  shall  not  exceed  the 
average  depth  of  the  court.  In  the  case  of  existing  rear  buildings, 
the  average  depth  of  court  lying  before  them  shall  not,  by  the  erec- 
tion of  additional  structures  be  made  less  than  equal  to  the  height  of 
the  rear  buildings.  Space  occupied  by  buildings  in  the  required  open 
space  at  the  side  of  buildings  and  in  court  areas,  to  the  height  of 
the  ground  story,  are  in  this  connection  reckoned  as  court  area. 

The  greatest  permissible  height  of  rear  buildings  is  in  the  resi- 
dential and  mixed  districts  of  the  inner  zone  and  in  the  mixed  dis- 
trict of  the  outer  zone,  13  m. ;  in  the  residential  district  of  the  outer 
zone  and  in  the  residential  and  mixed  districts  of  the  rural  district 
zone,  9m.;  in  the  suburban  house  district,  6  m. 

4.  Where  the  building  lot  slopes  up  or  down,  the  building  police 
is  authorized  to  decide  from  what  point  the  height  of  the  building 
is  to  be  measured. 

II.    Number  of  Stories.     i.    Front  Buildings 

For  front  buildings  the  number  of  permissible  stories  is: 

a.  In  the  residential  and  mixed  districts  of  the  inner  zone,  four 
stories  and  roof  story. 

b.  In  the  residential  and  mixed  districts  of  the  outer  zone,  with 
a  width  of  street   (comp.  I,  i)  of  at  least  14  m.,  three  stories  and 
roof  story ;  with  a  less  width  of  street,  two  stories  and  roof  story. 

c.  In  the   residential   and  mixed  districts  of  the   rural   district 
zone,  with  a  width  of  street   (comp.  I,  i)  of  at  least  18  m.,  three 
stories  and  roof  story;  with  a  less  width  of  street,  two  stories  and 
roof  story. 

d.  In  the  suburban  house  district,  two  stories  and  roof  story. 

2.    Rear  Buildings 

For  a  rear  building  no  greater  number  of  stories  is  permissible 
than  is  allowed  for  the  front  building  to  which  it  is  related  and 
at  most: 


ZONING  IN  EUROPE  243 

a.  In  the  residential  and  mixed  districts  of  the  inner  zone  and 
in  the  mixed  district  of  the  outer  zone,  three  stories  and  roof  story. 

b.  In  the  residential  district  of  the  outer  zone  and  in  the  resi- 
dential and  mixed  districts  of  the  rural  district  zone,  two  stories  and 
roof  story. 

c.  In  the  suburban  house  district,  two  stories  and  roof  story; 
but   rear  buildings   containing   independent   dwellings   for   rent   are 
forbidden. 

3.    Factory  District 

In  the  factory  district  the  number  of  stories  is  not  limited. 
Dwellings  are  permitted  only  for  the  owner  or  for  employees,  and, 
on  each  lot,  only  one  such  dwelling.*111  The  erection  of  a  larger  num- 
ber of  dwellings  on  the  lot  where  the  factory,  warehouse  or  business 
house  stands,  is  allowed  only  when  court  conditions  with  regard  to 
light,  air,  access,  etc.,  are  favorable  and  for  employees  whose  perma- 
nent presence  on  the  lot,  owing  to  the  nature  of  their  employment, 
seems  essential. 

The  factory  districts  on  the  Hanauer  Landstrasse  are  governed 
also  by  the  provisions  of  sec.  12,  VI. 

*  III.    Roof  Stories 

In  buildings  with  not  more  than  three  stories  (exclusive  of  roof 
story)  the  entire  roof  story  may  be  used  for  residence.  In  buildings 
with  more  than  three  stories  only  one  such  apartment  may  be  con- 
structed in  the  roof ;  and  that  apartment  shall  not  embrace  more  than 
half  the  floor  area  of  the  roof  story.  Exceptions  may  be  allowed  for 
buildings  in  existence  April  i,  1910. 

Single  rooms  for  residence,  auxiliary  to  residential  apartments  in 
other  stories,  may  be  constructed  over  the  joists  in  one  family  houses, 
and  in  other  houses  on  condition  that  the  number  of  stories  otherwise 
permissible  be  lessened  by  one.  Such  rooms  may  also  be  authorized 
by  the  executive  branch  of  the  city  council  for  houses  with  two  stories 
(exclusive  of  roof  story)  in  block  construction  in  accordance  with 
sec.  4,  II,  2,  d. 

IV.    Cellars 

In  cellars  the  ceiling  shall  not  be  situated  higher  than  2.50  m. 
above  the  sidewalk  or  the  surrounding  ground.  The  independent  use 
of  cellars  by  the  construction  of  stores  and  restaurants  is  forbidden.4* 

*  Summarized. 

*lm  This  provision  was  introduced  by  amendment  in  1912. 

•Ibid. 


244  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ACCESS   AND  LOCATION   OF  REAR   BUILDINGS 

Sec.  6 

I.    Passage  Way 

1.  When  independent  rear  buildings  with  dwellings  in  them  are 
constructed  or  when  a  front  house  is  built  on  a  lot  where  such  rear 
buildings  already  exist,  then  a  free  passageway  from  the  street  at 
least  3  m.  wide  and  3.20  m.  in  the  clear  to  all  the  rear  buildings,  con- 
necting with  the  sidewalk  at  grade,  shall  be  constructed.     This  pas- 
sageway shall  be  provided  with  pavement,  drainage  and  light,  and 
shall  be  permanently  kept  clear.    In  residential  districts  this  passage 
must  in  every  case  be  and  remain  unobstructed  by  buildings  over  it; 
in  mixed  districts  it  must  be  so  unobstructed  when  more  than  one 
rear  building  or  one  rear  building  of  more  than  two  stories  and  of 
more  than  130  sq.  m.  of  ground  area  are  on  the  lot. 

2.  Under  unfavorable  conditions  and  when  several  rear  buildings 
with  dwellings  are  erected  or  are  in  existence,  the  building  police 
may,  for  protection  against  fire,  require  a  broader  or,  if  need  be,  a 
second  passageway. 

3.  Exceptions  to  the  provisions  of  i,  may,  without  prejudice  to 
the  provisions  of  sec.  27  of  the  Building  Ordinance,  be  allowed  by 
the  building  police  for  one  family  houses  and  under  favorable  circum- 
stances, for  nouses  that  in  accordance  with  the  building  plan  are  sur- 
rounded on  two  or  more  sides  by  streets  or  public  parks  or  similar 
open  spaces;  and  also  for  rear  buildings  which  on  April   i,   1910, 
were  already  in  existence. 

II.    Setback  from  the  Street  in  Residential  Districts 

Rear  buildings  must  preserve  the  following  distances  from  the 
building  line  of  streets  established  by  city  plan  even  if  not  yet  con- 
structed : — in  the  residential  district  of  the  inner  zone,  at  least  30  m. ; 
in  the  residential  districts  of  the  outer  and  rural  district  zones  and 
the  suburban  house  district,  at  least  45  m.  Exceptions  in  the  case 
of  blocks  are  allowed  in  accordance  with  sec.  4,  II,  2,  d. 

III.    Dwellings  for  House  Staff 

The  provisions  of  I  and  II  do  not  apply  to  dwellings  for  the  house 
staff  (coachmen,  gardeners,  and  the  like)  in  so  far  as  such  dwellings 
are  erected  on  the  same  lot  as  that  on  which  their  employers  have 
their  residence ;  nor  do  these  provisions  apply  to  stables  and  carriage 
houses  belonging  to  single  family  houses  on  the  same  lot. 


ZONING  IN  EUROPE  245 

UNCOVERED   AREA 

Sec.  7 

I.    Size 

a.  Structures  in  the  residential  and  mixed  districts  of  the  inner 
zone  shall  leave  uncovered  at  least  $io,  and  of  corner  lots   (comp. 
sec.  10  of  the  Building  Ordinance)  if  built  up  with  only  one  corner 
house,  at  least  %o  of  the  lot  situated  behind  the  building  line. 

b.  In  the  residential  and  mixed  districts  of  the  outer  and  rural 
district  zone  the  open  space  shall  be  %o  and  "Ho  of  the  lot. 

c.  In  the  suburban  house  district  7Ao  of  the  building  lot  lying 
behind  the  street  line,  shall  remain  uncovered. 

d.  In  the  factory  district,  at  least  %o  of  the  building  lot  lying 
behind  the  building  line,  shall  remain  uncovered. 

e.  A  lot  running  through  the  block  from  a  street  in  the  residential 
to  a  street  in  the  suburban  house  district  shall,  in  so  far  as  the  pro- 
visions of  this  ordinance  with   regard  to  courts  are  concerned,  be 
deemed  to  be  divided  into  two  lots  of  equal  depth,  each  subject  to 
the  court  provisions  of  the  district  in  which  the  street  upon  which  it 
fronts,  is  situated. 

II.    Additional  open  space.     I.    More   than   One   Apartment  in  a 
Single  Story  of  a  House 

If  in  one  story  of  a  house  there  is  more  than  one  apartment,  then 
the  requisite  uncovered  space  for  every  such  house  is  to  be  increased 
by  10  sq.  m.  If,  however,  one  of  these  stories  contains  apartments 
with  more  than  four  rooms,  then  instead  of  this  amount  there  shall 
remain  open  for  every  such  story,  in  the  residential  and  mixed  dis- 
tricts of  the  inner  zone  an  additional  y>o  of  the  building  lot  lying 
behind  the  building  line ;  in  the  residential  and  mixed  districts  of 
the  outer  and  rural  district  zones  an  additional  %o.  In  the  suburban 
house  district,  only  one  apartment  is  permitted  in  each  story. 

2.    Deep  Houses 

If  a  front  building  has  a  depth  in  excess  of  18  m.,  then  the 
requisite  open  space  is  to  be  increased  by  a  space  equal  to  that  part 
of  the  area  that  exceeds  in  depth  the  i8m.  In  reckoning  the  open 
area,  the  area  of  side  setbacks  that  begin  at  the  building  line 
and  exceed  those  required  under  Sec.  4,  I,  i,  is  disregarded.  In  the 
mixed  districts  front  houses  and  connected  rear  buildings  are  for 
the  purposes  of  this  provision  considered  as  one  house.  In  the  resj- 


246  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

dential  and  mixed  districts  of  the  rural  district  zone  and  in  the 
suburban  house  district,  the  basis  is  15  m.  (instead  of  18  m.). 

In  the  residential  districts  of  the  outer  and  rural  district  zones 
and  in  the  suburban  house  district  the  requisite  enlargement  equals 
once  and  a  half  the  amount  of  the  area  of  that  part  of  the  building 
which  exceeds  in  depth  18  m.  and  15  m.  respectively.*  [Here  follow 
additional  formulas  for  fixing  the  increase  of  uncovered  space.] 

This  subdivision  shall  not  apply  to  buildings  devoted  entirely  to 
industry  in  the  mixed  and  factory  districts. 

3.    Rear  Buildings 

When  rear  buildings  are  erected  with  more  than  three  apart- 
ments, a  further  Mo  of  the  building  lot  situated  behind  the  building 
line  shall  be  kept  open. 

III.    Exceptions 

1.  For  one  family  houses  exceptions  to  the  provisions  of  I  and 
II,  2,  may  be  allowed. 

2.  Where  blocks  are  built  in  accordance  with  the  provisions  of 
Sec.  4,  II,  2,  d,  the  provisions  of  II,   i,  sentence  I,  and  II,  3,  may 
be   waived;    and   buildings    which   contain   philanthropic    residential 
adjuncts  may  be  disregarded  in  reckoning  the  area  to  be  left  free 
from  structures. 

3.  If  the  court  conditions  are   favorable,  an  exception  may  be 
allowed  from  the  provisions  of  II,  i,  sentence   i,  II,  2,  and  3  for 
buildings  that  were  in  existence  or  approved  on  April  i,  1910;  also 
until  March  31,  1912,  for  lots  that  on  April   i,  1910,  were  already 
subdivided  and  for  which  the  full  application  of  the  provisions  would 
cause  hardship. 

4.  By  special  license  more  of  the  area  of  the  lot  may  be  covered 
when  by  lessening  the  permissible  building  height  (sec.  5)  the  cubic 
content  resulting  from  the  permissible  height  and  the  area  built  over, 
in  accordance  with  the  provisions  of  this  paragraph,  are  not  exceeded, 
and  light  and  air  conditions  are  favorable. 

5.  If  the  provisions  of  II,  1-3  both  apply,  then  only  that  addition 
to  the  open  space  shall  he  made  which  gives  the  greater  open  space. 

6.  Exceptions  to  7,  I,  e,  may  be  allowed  by  the  building  police, 
under  the  conditions  of  sec.  12,  II,  E,  e. 

IV.     Use 

In  the  suburban  house  district,  the  area  left  open  shall,  with 
the  exception  of  the  necessary  entrance  walks  and  drives,  be  laid  out 
and  maintained  as  gardens  and  must  not  be  used  for  storage. 

*  Summarized. 


ZONING  IN  EUROPE  247 

DISFIGURING    STRUCTURES,     STABLES,     ETC.,     IN    THE    RESIDENTIAL    AND 

MIXED   DISTRICTS 

Sec.  8 

I.  Free  standing  buildings  of  more  than  two  stories  on  public 
streets  or  squares  shall  not  have  a  length  of  frontage  of  less  than 
8  m.    For  corner  houses  this  provision  holds  on  both  street  fronts. 

II.  Neither  structures  which  in  the  opinion  of  the  building  police 
would  be  strikingly  at  variance  with  the  character  which  by  lay  out 
and   building  development  the   street   possesses,   nor   stables,   barns, 
carriage  houses,  wash  kitchens,  outhouses  and  the  like,  shall  be  erected 
on  public  streets  or  squares.     Exceptions   may  be   allowed  by  the 
building  police  when  these  buildings  in  their  opinion  receive  an  appro- 
priate architectural  treatment. 

III.  The  back  and  sides  of  a  building  which  is  erected  so  near 
the  building  line  of  a  street  that,  in  the  opinion  of  the  building  police, 
necessary  space  for  the  erection  of  a  building  concealing  such  back 
or  sides  would  not  be  left,  must  be  given  a  situation  suited  to  the 
building  line  in  question  and  a  suitable  architectural  form. 

IV.  Party  walls  that  remain  permanently  visible  from  the  street 
must  be  finished  like  faqades. 

BUILDINGS    WITH    TIMBERED    CONSTRUCTION 

*  Sec.  9   (Structural  provisions) 


Sec.  10 

1.  For  dwelling  houses  that  fulfil  the  following  conditions: 

a.  The  houses  must  not  cover  more  than  130  sq.  m.  of  ground 
area,   in  which   connection   balconies,   open   verandas,   etc.,   are   not 
included. 

b.  They  must  not  have  more  than  three  stories  (exclusive  of  roof 
story). 

c.  They  must  not  have  any  apartments  in  the  cellar  or  basement. 

d.  The  roof  angle  over  the  principal  cornice  to  the  joists  must 
not  exceed  70  degrees;  that  from  there  up,  45  degrees. 

Moreover ; 

2.  For  one  and  two  family  houses  with  at  most  two  stories  (exclu- 
sive of  roof  story)  there  may  be  the  following  exemptions: 

*  Summarized- 


248  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

a.  The  clear  height  of  the  stories  may  be  reduced  to  2.80  m. 

b.  The  practicable  depth  of  the  stairs  may,  if  in  no  story  more 
than  one  apartment  is  situated  on  such  stairs,  be  reduced,  with  wind- 
ing stairs  to  i  m. ;  with  straight  runners  and  landings  to  90  cm. ;  and 
the  width  of  halls  to  90  cm. 

c.  Exceptions  to  the  provisions  of  sec.  20  of  the  Building  Ordi- 
nance with  relation  to  strength  and  construction  of  party,   faqade. 
and  partition  walls,  may  be  granted  by  the  building  police  if  the 
building  will  be  sufficiently  stable,  fire  resisting,  and  hygienic. 

d.  So  also  wood  construction  of  verandas  and  the  like  may  be 
permitted  if  no  instability  or  fire  risk  exists. 

e.  In  building  groups,  party  walls  of  the  strength  and  thickness 
as  prescribed  need  be  erected  only  every  40  m.  of  the  length  of  the 
group,  and  need  not  be  raised  above  the  roof  more  than  20  cm. 

/.  In  place  of  the  enclosures  on  streets  as  prescribed  in  sees.  57 
and  58  of  the  Building  Ordinance,  any  other  sort  of  enclosure  may 
be  allowed  by  which  the  cleanliness  of  the  street  and  the  safety  of 
passers-by  are  not  endangered. 

g.  The  buildings  may  be  occupied  four  months  after  their  inspec- 
tion in  the  rough. 

PROHIBITION  OF   OFFENSIVE   INDUSTRIES 

Sec.  ii 

1.  In  residential   and  suburban  house  districts  the   erection  or 
enlargement  of  works  which  may  be  injurious,  dangerous,  or  annoy- 
ing to  the  owners  or  occupants  of  neighboring  lots  or  to  the  public 
generally  by  spreading  injurious  gases  or  dense   smoke  or  making 
unusual  noises,  especially  works  that  under  sec.  16  of  the  National 
Industrial    Ordinance  *   must   be   especially   licensed,   are    forbidden. 

On  main  traffic  streets  in  residential  districts,  small  bakeries,  con- 
fectioners, and  butchers'  shops,  etc.,  may  be  erected  by  special 
license.44 

2.  In  suburban  house  districts,   workshops  of  every  sort,  hos- 
pitals, restaurants  and  other  objectionable  enterprises;  also  such  stores 
as  by  their   conduct   cause   smells,   noise,   or  other   annoyance,   are 
forbidden. 

PARTICULAR  PROVISIONS  FOR  SPECIAL  SECTIONS 

*  Sec.  12 

[Here  follow  several  pages  of  provisions  applicable  in  some  places 
to  large,  in  others  to  very  small  areas.  These  provisions  are  public 

*  Summarized. 

*"  See  p.  210. 

"This  provision  was  passed  May  31,  1913. 


ZONING  IN  EUROPE  249 

ordinances  but  in  many  cases  were  passed  on  petition  of  the  land 
owners  concerned.  Some  of  these  regulations  are  public  law  and 
nothing  else ;  some  of  them  also  form  part  of  private  restrictive  cove- 
nants. In  all  cases,  in  so  far  as  they  are  public,  they  may  be  changed 
or  repealed  like  other  ordinances.  A  specimen  of  these  special  pro- 
visions is  given  below.  The  reader  will  have  noticed  similar  provi- 
sions in  the  case  of  the  building  ordinance,  a  translation  of  which  is 
given  on  p.  228  (sees.  64,  65,  p.  237.)] 

I.    Residential  District,  Inner  Zone 


2.  For  the  section  between  Hohenzollern  Square,  Kettenhof  Way, 
Konigs  Square,  Varrentrapp  Street  and  Bismark  Boulevard,  the 
following  provisions  apply : 

a.  In  block  B ,**  also  in  the  tract  on  Hohenzollern  Square 

between  Victoria  School  and  Roon  Street,  as  well  as  on  Roon  Street, 
only  buildings  of  two  stories  may  be  erected;  also  the  ridge  of  the 
roof  and  vertical  projection  must  not  exceed  14  m.  ... 

c.  On  Hohenzollern   Square,  groups  of  buildings  are   not  per- 
mitted. 

d.  In  blocks  A  and  B  only  buildings  with  at  most  two  apartments 
.  .  .  are  allowed.  .  .  . 

/.  Workshops  of  every  sort,  hospitals,  restaurants  and  similar 
objectionable  enterprises  are  not  permitted.  In  Blocks  A,  B,  D,  and 
E  stores  are  also  forbidden. 

In  block  C,  on  the  Moltke  Boulevard  and  Konigs  Street,  shops 
whose  conduct  causes  smells,  noise,  and  other  annoyances  are  forbid- 
den; on  Bismark  Boulevard,  in  the  block,  stores  are  allowed  only 
upon  special  license  of  the  executive  branch  of  the  city  council.  On 
the  corner  of  Moltke  Boulevard  and  Bismark  Boulevard,  the  erection 
of  a  first  class  cafe  may  be  permitted. 

g.  For  public  buildings  the  executive  board  may  grant  exemp- 
tions. .  .  . 

TRANSITIONAL  AND  EXCEPTIONAL  PROVISIONS 

Sec.  13 

i.    Exemptions  That  May  Be  Allowed  in  Certain  Localities 

I.  The  building  police  is  authorized  to  allow  appropriate  excep- 
tions when  by  the  complete  application  of  the  provision  of  sees. 
4-8  and  12  the  building  up  or  use  of  lots  situated  on  streets  or  parts 
of  streets  which  on  April  i,  1910  were  already  opened  and  in  part 

45  The  boundaries  of  each  block  are  given  in  the  original. 


built  up  would  be  made  materially  more  difficult  or  impossible  either 
by  reason  of  unfair  limitation  of  height  with  relation  to  the  height 
of  existing  buildings  or  otherwise. 

II.  To  the  building  police  the  right  is  further  reserved  to  allow 
exceptions  for  public  buildings,  hospitals,  buildings  for  philanthropic 
institutions,  and  monumental  private  buildings. 

III.  In  the  residential  and  mixed  districts  of  the  rural  district 
zone  and  in  the  suburban  house  district,  newly  built  dwelling  houses 
in  the  sections  which  are  not  yet  connected  with  the  city  sewer  sys- 
tem may  be  erected  only  when  the  building  police  consider  the  exist- 
ing facilities  for  the  disposal  of  sewage,  drainage,  etc.,  sufficient  for 
sanitary  purposes. 

PENALTIES  AND  RULES  FOR  ENFORCEMENT 

Sec.  14 

*  I.    Fines,  etc. 

II.  In  addition  the  removal  of  the  condition  contrary  to  this  ordi- 
nance may  be  compelled  when  as  a  result  of  voluntary  transfer  or 
other  acts  of  the  landowner  the  open  space  required  by  section  7  no 
longer  is  at  hand  or  when  single  family  houses  in  the  erection  of 
which  one  or  more  of  the  exemptions  of  sees.  4,  6  and  7  were  made 
use  of,  are  utilized  for  apartments  for  several  families  or  when  any 
other  use  of  lots  contrary  to  the  provisions  of  this  police  ordinance 
occurs. 

III.  Areas  which  with  relation  to  a  given  lot  are  required  to  be 
left  free  of  structures  or  the  leaving  open  of  which  is  assumed  in 
the  granting  of  the  permit  to  build,  remain,  so  far  as  the  minimum 
free  spaces  under  this  ordinance  are  concerned,  burdened  with  this 
restriction  when  they  are  cut  off  from  that  lot  or  through  transfer  of 
title  they  have  wholly  or  partly  passed  into  other  hands;  and  such 
areas,  in  granting  additional  permits  to  build,  cannot  be  considered. 

DATE  WHEN  ORDINANCE  GOES  INTO  EFFECT;   AND  REPEALS 

*  Sec.  15 

The  ordinance  in  effect  April  8,  1910,  repealing  many  previous 
ordinances. 

No.  3.    THE  DUSSELDORF  BUILDING  ORDINANCE** 

The  building  ordinance  of  Diisseldorf  is  detailed  and  complicated. 
It  contains  certain  structural  and  other  provisions  which  are  the  same 

*  Summarized. 

**  Passed  March  8,  1912.     It  will  be  found  in  German  in  a  convenient 
form  as  edited  l>y  P.  Wagner,  Gebr.  Tonnes,  Publishers,  Dusscldorf,  1912. 


ZONING  IN  EUROPE  251 

for  the  entire  city  and  which,  in  this  brief  summary,  there  will  be 
little  occasion  to  consider ;  and  zoning  provisions,  which  are  the  chief 
concern  of  this  inquiry.  The  purpose  of  the  zoning  rules,  in  Dussel- 
dorf  as  elsewhere,  is  to  produce  structures  which  in  bulk  and  type 
are,  so  far  as  possible,  suited  to  the  part  of  the  city  in  which  they 
are  to  be  situated;  in  the  attainment  of  which  result  the  bulk  of 
structures,  in  proportion  to  the  area  of  their  lots,  decreases  as  the 
distance  from  the  centers  of  business,  congestion  and  high  land  value 
becomes  greater ;  and  the  type  of  building  is  adapted  to  the  situation 
and  best  use  of  the  land  on  which  it  is  to  stand. 

The  zoning  regulations  consist  of  (bulk)  zone  rules  and  class 
rules.  The  zones,  five  in  number  cover  the  entire  city;  the  classes, 
of  which  there  are  eleven  in  all,  occur  only  in  those  districts  or  on 
those  streets  or  parts  of  streets,  within  the  zones,  to  which  they  are 
applied ;  the  class  rules,  in  so  far  as  there  is  conflict,  superseding  the 
zone  rules.  The  main  purpose  of  the  zone  rules,  as  distinguished  from 
the  class  rules,  is  to  fix  the  bulk  of  buildings;  but  these  rules  do 
sometimes  favor  certain  types  of  building.  The  main  purpose  of  the 
class  rules  is  to  fix  the  type  of  building,  but  these  regulations  are  to 
some  extent  bulk  regulations. 

To  illustrate:  In  zone  i,  a  third  of  each  lot  must,  as  a  general 
thing,  be  left  free  of  buildings;  but,  if  there  are  any  rear  buildings 
on  the  lot,  one  half  of  it  must  be  left  open.  This  provision  discour- 
ages the  erection  of  rear  buildings  but  does  not  forbid  it.  In 
class  B  n,  on  the  other  hand,  a  rear  building  line,  not  demanded  by 
any  zone  regulation,  is  required;  and  the  height  limit  is  thirteen 
meters,  superseding  the  limit  of  the  zone,  whichever  it  may  chance 
to  be,  in  which  this  class  is  found.  These  are  bulk  regulations,  but 
they  are  employed  not  so  much  to  limit  bulk  as  to  produce  or  aid  in 
obtaining  a  given  type  of  structure. 

In  the  building  regulations  of  Dusseldorf,  as  in  those  of  all  cities, 
there  are  many  rules  that  apply  throughout  the  entire  city,  a  few  of 
which  must  be  considered,  and  there  are  also  certain  rules  that  vary 
in  the  different  zones  and  classes.  Dusseldorf,  too,  has  formulated 
in  her  building  ordinance  certain  definitions  which,  besides  making 
that  ordinance  more  intelligible,  are  interesting  and  suggestive.  This 
summary  of  the  Dusseldorf  building  ordinance  will  therefore  give: 
(A)  definitions,  (B)  general  provisions,  (C)  the  general  scheme  of 
division  of  the  city  into  zones  and  classes,  (D)  the  zone  rules,  (E) 
the  class  B  or  residential  class  rules  (the  other  class  rules  having 
been  sufficiently  indicated  in  the  general  scheme  of  division  under 
(C).  In  this  survey  of  the  Dusseldorf  ordinance  only  those  pro- 
visions are  taken  up  which  are  novel  or  especially  important,  and 
these  only  in  outline,  without  explanatory  or  qualifying  details  and 
exceptions. 


252  THE  LAW  OF  CITY  PLANNING  AND  ZONING 


DEFINITIONS 

One,  Two,  Three  or  Four  Story  House.  A  house  used  solely  for 
residential  purposes  and  which  in  design,  construction  and  equip- 
ment is  fitted  for  use  only  by  one,  two,  three,  or  four  families,  respec- 
tively. In  no  case  shall  a  story  have  more  than  one  apartment.  A 
janitor's  apartment  when  and  as  authorized  by  this  ordinance  is  not 
regarded  as  an  infringement  of  this  rule. 

Double  House.  A  building  exclusively  for  residential  purposes, 
with  a  common  stair  well,  which  serves  two  families  on  each  floor; 
the  two  apartments  being  otherwise  separate  and  distinct.  The  nunv 
ber  of  main  residential  rooms  in  the  apartments  of  any  floor  shall 
not  differ  in  number  by  more  than  one;  and  the  number  of  any  of 
the  subordinate  rooms  such  as  bathrooms,  etc.,  shall  be  the  same. 

Small  House.  A  one  family  house  with  not  more  than  two  stories 
and  not  higher  than  7.5  m.,  or  a  two  family  house  of  the  same  plan 
but  with  not  more  than  eight  principal  dwelling  rooms. 

House  of  Small  Tenements.  A  house  strictly  for  residence,  con- 
taining only  small  apartments,  i.  e.,  family  dwellings  with  at  most 
three  principal  dwelling  rooms.  Under  the  provisions  for  this  class 
of  house,  by  special  permit,  a  house  with  a  family  apartment  in  the 
ground  story  with  four  main  dwelling  rooms  and  small  stores  or 
shops,  may  be  built. 

Large  Tenement  House.  A  house  of  more  than  two  stories  (ex- 
cepting the  roof  story)  which,  exclusive  of  permissible  rooms  or  apart- 
ments in  the  roof  story,  contains  not  more  than  twelve  apartments. 

Rural  Buildings.  Residential  and  agricultural  buildings  dwelt  in 
and  used  only  by  the  owner  of  the  land,  his  relatives  and  employees. 

Common  Courts.  Courts  on  contiguous  lots  the  permanency  of 
the  union  of  which  is  secured  by  covenant  between  the  neighbors, 
and  between  each  of  them  and  the  city. 

Common  Side  Setback  Spaces.  Contiguous  side  setback  spaces 
on  neighboring  lots  the  permanency  of  the  union  of  which  is  secured 
by  covenant  between  the  neighbors,  and  between  each  of  them  and 
the  city. 


GENERAL  PROVISIONS 

Height.    Height  is  measured  to  the  upper  surface  of  the  cornice. 
The  maximum  varies  from  20  m.  to  7.5  m.     Except  on  streets  which 


ZONING  IN  EUROPE  253 

may  be  built  up  on  only  one  side,  the  front  house  must  in  no  case  be 
higher  than  the  street  is  broad.  On  corner  lots  the  height  on  the 
broader  street  may  be  carried  along  the  narrower  street  to  a  distance 
equal  to  the  width  of  the  wider  street,  but  in  no  case  more  than  20  m. 
The  height  of  rear  buildings,  wings,  etc.,  is  regulated  by  the  width 
of  the  courts  in  front  of  them  and  varies  in  the  different  zones  and 
classes. 

Light  Profile.  Buildings  extending  back  from  the  building  line 
more  than  20  m.  must,  on  the  sides  toward  the  neighboring  side  line, 
keep  within  a  height  and  profile  varying  in  the  different  zones  and 
classes,  so  as  not  to  obstruct  their  neighbor's  light. 

A  lot  is,  as  a  rule,  relieved  of  this  obligation  when  the  neighbor 
is  under  the  legal  obligation  not  to  construct  required  windows  giving 
on  this  lot. 

Number  of  Stories.  The  maximum  number  of  stories  varies  in 
the  different  zones  and  classes  from  5  to  2.  It  is  lessened  by  one  in 
many  cases,  among  which  may  be  mentioned:  when  any  of  the  prin- 
cipal residential  rooms  are  in  the  cellar ;  when  the  cellar  is  so  built 
that  the  upper  surface  of  the  floor  of  the  story  over  it  is  more  than 
1.5  m.  above  the  sidewalk  or  court;  when  any  of  the  principal  resi- 
dential rooms  are  in  the  roof  story.  But  there  is  no  such  diminution 
in  the  number  of  stories  on  account  of  the  construction,  in  conformity 
to  the  rules  of  the  building  ordinance  as  to  height,  roof  angle,  etc., 
of  rooms  in  the  roof  story  not  connected  with  one  another  which  do 
not  form  an  apartment  and  do  not  together  cover  more  than  half  the 
floor  area  below  the  joists.  There  are  also  exceptions  for  single 
houses  and  houses  of  small  apartments. 


OPEN  SPACE 

In  General.  On  every  lot  a  given  proportion  must  be  left  free  of 
buildings,  the  proportion  varying  from  Mo  to  %o. 

In  calculating  the  obligatory  amount  of  open  space,  the  usual 
projections  into  or  over  the  court  space  are  allowed  without  increas- 
ing the  amount  so  required;  and  also  a  proportion  of  the  lot  area 
varying  in  the  different  zones  and  classes  from  ^  to  %  may  be 
covered  with  subsidiary  buildings  not  more  than  5  m.  high,  the  land 
so  covered  being  nevertheless  reckoned  as  open  space.  In  zone  I, 
however,  there  is  no  such  provision. 

With  regard  to  open  space  on  corner  lots  see  corner  lots,  p.  255. — 
Where  a  lot  is  developed  exclusively  with  (a)  a  one,  two,  three  or 
four  family  house;  or  (b)  with  a  house  with  not  more  than  two 


254  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

apartments  on  a  floor;  or  (c)  with  a  "house  of  small  apartments" 
with  not  more  than  three  apartments  on  a  floor,  if  in  each  case  the 
house  does  not  extend  back  from  the  building  line  to  a  greater  depth 
than  20  m.,  the  required  open  space  is,  as  a  rule,  reduced.  This  rule 
does  not  apply  to  zone  I  and  to  it  there  are  exceptions  in  zone  V. 

Rear  Building  Lines  for  Entire  Blocks.  Where,  on  petition  of 
the  property  owners  interested,  the  building  police,  after  hearing  the 
city  authorities,  has  established  for  an  entire  block,  rear  building 
lines  enclosing  in  the  interior  of  the  block  not  less  than  a  given  pro- 
portion of  the  total  area,  varying  in  the  different  zones  from  ->io  to 
%o,  this  proportion  may,  as  a  rule,  be  fixed  as  the  proportion  of 
open  space  for  the  entire  block;  and  all  but  the  interior  space  so 
enclosed  built  over.  In  zone  V,  if  the  interior  is  devoted  to  common 
parks,  playgrounds,  etc.,  and  the  proportion  is  9io,  an  extra  story 
(3  in  all)  is  permitted. 

Side  Setbacks.  Buildings  must,  as  a  rule  (when  zone  and  class 
rules  permit),  be  placed  on  the  neighboring  boundary,  or  with  a  set- 
back from  it  of  at  least  2.5  m. ;  and  buildings  on  the  same  lot  (except 
as  zone  and  class  rules  provide  otherwise)  must  be  built  against  one 
another  or  with  a  space  between  of  at  least  2.5  m. 

Detached  Building  in  Zones  and  Classes  Where  Attached  Building 
Is  Permitted.  In  such  cases  there  must  be  to  at  least  the  depth  of 
20  m.  from  the  building  line,  a  minimum  side  setback  from  the 
neighbor's  boundary  of  10  m. ;  or,  if  a  "common  setback  space"  is 
established,  a  minimum  setback  on  each  lot,  which,  for  a  building 
height  on  the  setback  space  of  from  7.5  m.  to  15.5  m.  and  more,  is 
from  2  to  5  m.  These  heights  must  be  maintained  for  a  distance  of 
7  m.  from  the  setback  space. 

Offensive  Enterprises.  Wherever  situated,  such  enterprises  must 
be  located  in  rooms  with  specially  and  permanently  closed  windows 
on  the  street,  or  with  a  set  back  from  it  of  at  least  4  m. 

Light  Profile.  Buildings  extending  back  from  the  building  line 
more  than  a  given  depth  must,  except  in  classes  C  and  D,  keep  within 
a  given  side  and  height  profile  so  as  not  to  obstruct  their  neighbor's 
side  light.  In  class  B  v  and  in  the  zones  outside  the  classes,  this  rule 
does  not  apply  when  the  neighbor  is  under  the  legal  obligation  not  to 
construct  required  windows  giving  on  the  lot  in  question.  The  depth 
back  of  the  building  line  at  which  this  obligation  to  maintain  the 
light  height  and  profile  begins,  varies  in  the  different  zones  and 
classes  from  20  to  40  m.,  and  the  height  from  20  to  5  m. 

Narrow  Lots.  As  a  rule  only  lots  with  a  frontage  of  at  least  7 
m.  on  a  public  street  at  least  7  m.  wide,  may  be  built  up;  but  in 
certain  parts  of  the  older  city  this  rule  does  not  apply  to  rebuilding; 
and  for  one  family  houses  and  small  houses  built  as  front  houses,  a 
lot  frontage  of  not  less  than  5  m.  is  permissible. 

Corner  Lots.    A  corner  lot  is  deemed  to  be  bounded  on  its  two 


'ZONING  IN  EUROPE  255 

sides  that  are  not  street  fronts,  by  two  lines  of  equal  length  called 
"normals"  which  shall  start  at  a  common  point  and  run  to  the  street 
or  building  lines.  These  lines  vary  in  length  in  the  different  zones 
and  classes  where  they  occur  from  24  m.  to  40  m.  Rules  are  given 
for  carrying  out  this  system  and  meeting  exceptional  cases. 

On  corner  lots  with  an  angle  of  from  135  to  100  degrees,  seventy- 
five  per  cent,  of  the  area  may  be  built  over;  with  every  5  degrees 
decrease  of  the  angle,  the  permissible  area  to  be  built  over  increases 
one  per  cent;  but  in  no  case  may  the  lot  be  built  up  deeper  than 
16  m.  There  are  special  rules  for  certain  lots  next  to  corners. 

Where  a  corner  lot  is  in  more  than  one  zone  or  class,  the  corner 
house  up  to  20  m.  from  the  corner  may  have  the  number  of  stories 
allowed  for  the  zone  or  class  with  the  most  liberal  provision. 


DIVISION  OF  CITY  INTO  ZONES  AND  CLASSES 

The  entire  city  is  divided  into  five  zones  in  which  the  rules  in 
regard  to  the  height,  area  and  number  of  stories  of  buildings  varies. 
In  these  zones  are  areas  covered  by  special  rules  as  follows : 

Class  A — Inner  City.  In  the  inner  city  and  on  chief  business 
streets  outside  the  inner  city,  the  building  police  may  allow  certain 
exceptions  to  zone  rules  in  the  interest  of  business.  These  exceptions 
allow  a  greater  intensity  of  building. 

Classes  B  I-VIII — Residential  Classes.  By  special  police  ordi- 
nance certain  streets,  parts  of  streets  and  districts  may  be  designated 
as  residential  areas.  These  areas  are  subject  to  the  zone  rules  as 
modified  by  the  rules  of  the  building  class  to  which  they  are  assigned. 
In  classes  B  I-VI  attached  or  block,  in  classes  B  VII-VIII  de- 
tached building  is  provided  for. 

Protected  Districts.  By  special  police  ordinance  certain  districts 
may  be  designated  in  which  the  location  and  prosecution  of  offensive 
industries  is  limited.  These  districts  are  called  "protected  districts." 
Residential  streets  and  parts  of  streets  (classes  B  I-VIII)  are  pro- 
tected districts  without  further  designation. 

Class  C — Industrial  Class.  In  districts  or  on  streets  designated 
as  industrial,  the  rules  of  zone  I  apply,  and  in  special  cases  the  build* 
ing  police  may  allow  a  greater  intensity  of  building.  See  also  "offen- 
sive enterprises,"  p.  254. 

Class  D — Rural  Class.  This  class  is  intended  for  rural  develop- 
ment in  which  rural  buildings  only  shall  be  built.  On  permit  from 
the  city  authorities  after  hearing,  many  of  the  requirements  of  the 
building  ordinance  and  of  the  zone  in  which  the  land  is  situated  may 
be  waived  in  certain  particulars  and  to  a  given  extent.  The  greatest 
permissible  number  of  stories  is  two  and  the  maximum  height  7.5  m, 


250  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

E 
ZONE  RULES 

Zone  I 

The  minimum  required  proportion  of  lot  area  to  be  left  open 

is  Yy, 

but  if  there  are  rear  buildings  with  residential  apartments 

on  the  lot,  l/t ; 

or,  if  there  are  no  buildings  on  the  lot  higher  than  10  m.  or 

with  more  than  two  stories,  J4- 

The  maximum  number  of  stories  is  4; 

but  for  rear  buildings  with  residential  apartments  3. 

The  maximum  height  is  20  m. 

The    maximum    height   of    light    profile    on   the    neighbor's 

boundary  is : 

at  a  depth  of  from  more  than  20-30  m.  20  m. 

at  a  greater  depth,  14  m. 

The  maximum  height  of  rear  buildings,  etc.,  is     court  width  plus  5111. ; 
or,  if  a  common  court  is  established, 

combined  court  width  plus  3  m. 

Zone  II 

The  minimum  required  proportion  of  lot  area  to  be  left  open 

is  M; 

but  if  there  are  rear  buildings  with  residential  apartments 

on   the  lot  9io. 

The  maximum  number  of  stories  is : 

with  streets  under  13  m.  in  width,  2; 

with  streets  without  front  gardens  and  a  street  width  of  at 
least  20  m. ;  or: 

with  streets  with  front  gardens  and  a  street  width  of  at 
least  20  m. ;  or  a  width  between  building  lines  of  at  least 
26  m.  and  a  street  width  of  at  least  15  in.,  if  (except  for 
corner  houses  with  at  least  four  apartments  to  a  floor) 
there  are  no  large  tenement  houses  on  the  street : 

to  a  depth  of  20  m.,  4; 

beyond  that  depth,  3; 

on  all  other  streets,  3; 

but   for   lots  with   rear  buildings   with   residential   apart- 
ments 2. 
Where  the  front  house  has  four  stories,  rear  houses  are  not 
permitted  unless  there  is  a  minimum  space  between  equal 
to  the  height  of  the  front  house. 


ZONING  IN  EUROPE  257 

The  maximum  height  is  16  m. ; 

except  that  where  four  stories  are  allowed  it  is  20  m. 

The    maximum   height    of   light   profile    on   the    neighbor's 

boundary  is: 

at  a  depth  of  from  more  than  20-30  m.  16  m. 

at  a  greater  depth  n  m. 

The  maximum  height  of  rear  building,  etc.,  is 

court  width  plus  5  m. 
or  if  a  common  court  is  established, 

combined  court  width  plus  3  m. 


Zone  III 

The  minimum  required  proportion  of  lot  area  to  be  left  open 

is  %o. 

The  maximum  number  of  stories  is 

with  streets  without  front  gardens  and  a  street  width  of  at 

least  20  m. ;  or 

with  streets  with  front  gardens  and  a  street  width  of  at 
least  20  m.  or  a  width  between  building  lines  of  at  least 
26  m.  and  a  street  width  of  at  least  15  m.  if  (except  for 
corner  houses  with  at  most  four  apartments  to  a  floor) 
there  are  no  large  tenement  houses  on  the  street 
to  a  depth  of  20  m.  4; 

to  a  depth  of  from  20-25  m-  3 ; 

beyond  that  depth,  2; 

on  all  other  streets, 

to  a  depth  of  25  m.  3; 

beyond  that  depth,  2. 

For  lots  on  all  streets  for  which  to  a  depth  of  25  m.  the  maxi- 
mum number  of  stories  is  3,  the  maximum  on  the  estab- 
lishment of  a  common  court  and  in  the  case  of  double 
houses  is, 

to  a  depth  of  30  m.  3; 

beyond  that  depth  2. 

Where  the  front  house  has  four  stories,  rear  houses  are  not 
permitted  unless  there  is  a  space  between  at  least  equal 
to  the  height  of  the  front  house. 

The  maximum  height  is  16  m. ; 

except  that  where  four  stories  is  allowed  it  is  20  m. 

The  maximum  height  of  light  profile  on  the  neighbor's 
boundary  is: 

at  a  depth  of  from  more  than  20-30  m.  12  m. ; 

at  a  greater  depth,  8  m. 


258  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  maximum  height  of  rear  buildings,  etc.,  is 

court  width  plus  5  m. 
or,  if  a  common  court  is  established, 

combined  court  width  plus  3  m. 

Zone  IV 

The  minimum  required  proportion  of  lot  area  to  be  left  open 
is  on  68  named  streets  or  parts  of  streets: 
when  the  height  of  the  buildings  on  the  lot  is  not  more 

than  8m.  J4 ; 

when  not  more  than  8-12  m.  J-$; 

when  in  excess  of   12  m.  $4o. 

On  all  other  streets  9io. 

The  maximum  number  of  stories  is 

for  lots  on  streets  under  13  m.  in  width,  2, 

for  lots  on  all  other  streets: 

to  a  depth  of  25  m.  3; 

beyond  that  depth  2. 

The  maximum  height  is  16  m. 

The    maximum   height   of   light   profile   on   the   neighbor's 
boundary  is: 

at  a  depth  of  from  more  than  20-30  m.  12m.; 

at  a  greater  depth,  8  m. 

The  maximum  height  of  rear  buildings,  etc.,  is 

court  width  plus  5  m. ; 
or  if  a  common  court  is  established, 

combined  court  width  plus  3  m. 


Zone  V 

The   minimum   required  proportion  of   lot  area  to   be   left 

open  is  Tio; 

but  if  on  the  lot.  there  is  only  a  small  house  it  is  J4; 
and  if  only  a  front  house  extending  back  from  the  building 

line  not  more  than  16  m.  it  is  9io. 

The  maximum  number  of  stories  is  a. 

The  maximum  height  is  13  m.; 

but  wherever  the  maximum  number  of  stories  is  3,  it  is  16  m. 
The   maximum   height   of   light   profile   on   the    neighbors' 
boundary  at  a  depth  of  over  20  m.  from  the  building  line 

is  8m. 

The  maximum  height  of  rear  buildings,  etc.,  is                 court  width; 

or  if  a  common  court  is  established               combined  court  width. 


ZONING  IN  EUROPE  259 

F 
B  OR   RESIDENTIAL   CLASS    RULES 


Classes  B  I-VL    General  Rules 

Attached  building  is  allowed.  Only  front  houses  and  (except 
in  B  VI),  subsidiary  buildings  strictly  for  domestic  uses, 
such  as  stables,  servants'  dwellings,  garden  houses,  ar- 
bors, etc.,  are  permitted.  Front  houses  except  those  next 
to  corner  lots,  must  not  extend  to  the  rear  property  line. 

Class  B  I 

Intended  for  one  and  two  family  houses,  on  lots  without  rear 
building  line.  Only  one  and  two  family  houses,  or  double 
houses  with  at  most  4  apartments,  allowed.  Two  family 
houses  must  have  a  front  width  of  at  least  12  m.,  double 
houses,  of  22  m.  Maximum  number  of  stories  2. 

Class  B  II 

Intended  for  one  and  two  family  houses  on  lots  with  a  rear 
building  line.  Only  houses  with  at  most  2,  double  houses 
4,  apartments  allowed.  Must  not  extend  more  than  16 
m.  back  from  the  building  line,  except  one  story  sub- 
sidiary buildings,  which  may  go  back  20  m.  Maximum 
number  of  stories  2. 

maximum  building  height,  13  m. 

Class  B  III 

Intended  for  one,  two  and  three  family  houses,  on  lots  with- 
out rear  building  line.  Only  houses  with  at  most  3, 
double  houses  6,  apartments  allowed.  Maximum  num- 
ber of  stories,  3. 

Class  B  IV 

Intended  for  one,  two  and  three  family  houses  on  lots  with 
rear  building  line.  Rules  the  same  as  in  Class  B  II, 
except  that  the  maximum  number  of  stories  is,  3. 

Maximum  building  height  when  constructed  with  at  most  3, 

double  houses  6,  apartments,  is  16  m. 


26o          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Class  B  V 

Intended  for  apartment  houses  and  must  have  at  most  2 
apartments  in  any  one  story.  In  a  number  of  ways,  a 
greater  building  intensity  is  permitted. 

Class  B  VI 

Intended  for  tenement  houses  and  houses  of  small  tene- 
ments. At  most  2  apartments  to  a  floor,  or  for  a  house 
of  small  tenements,  3  such  apartments.  Subsidiary  build- 
ings may  be  erected  for  shops,  etc.,  of  those  dwelling  on 
the  lot,  for  such  pursuits  as  in  the  judgment  of  the 
building  police  will  not  cause  dangerous  or  annoying 
odors,  smoke,  noise,  etc. 

Classes  B  VII-VIII.     General  Rules 

Detached  building  is  required.  The  general  rules  for  the  at- 
tached classes  B  I-IV  apply  with  the  following  additions: 

Only  one  and  two  family  houses  and  double  houses  with  at  most 
four  apartments  are  permitted.  The  maximum  number  of  stories 
is  two. 

Buildings  on  the  side  toward  the  required  side  setback  space 
must  receive  appropriate  architectural  treatment  and  finish.  The 
side  space  must  not  be  used  for  storage  but,  with  the  exception  of 
necessary  entrances  and  exits,  must  be  kept  as  an  ornamental  garden. 
The  usual  projections  within  much  the  usual  limits  into  and  over 
this  space  are  allowed. 

Groups  are  allowed,  but  only  when  security  is  given  that  all  the 
houses  will  be  erected  at  the  same  time,  and  the  group  as  a  whole 
will  receive  proper  architectural  treatment.  As  a  rule  not  more  than 
three  houses,  none  of  which  may  be  double  houses,  are  allowed  in  a 
group.  Alterations  and  reconstructions,  including  painting  of  the 
faqade,  are  subject  to  the  approval  of  the  building  police.  Common 
courts  are  allowed.  At  street  corners  where  detached  and  attached 
classes  meet,  the  building  police  may  allow  a  continuation  of  attached 
buildings  into  the  detached  class,  but  not  for  more  than  three  houses 
beyond  the  corner. 

Class  B  VII 

(a)  Intended  for  one  and  two  family  houses  on  lots  without  a 
rear  building  line.  Two  family  houses  must  have  a  minimum  width 
in  front  of  u  in.  and  double  houses  of  22  ni. 

(fr)  Except  as  provided  below,  buildings  must  maintain,  to  a 
depth  of  30  m.  from  the  building  line,  a  side  setback  from  the  neigh- 


ZONING  IN  EUROPE  261 

boring  boundary,  of  5  m. ;  but  beyond  that  depth  subsidiary  build- 
ings are  subject  only  to  the  setback  provision  mentioned  under  C. 

(c)  For  a  group  of  three  houses  the  side  setback  is  10  m. ;  for 
two  houses  or  a  double  house  8  m. 

(rf)  The  side  space  for  a  house  or  group  may  be  decreased  to 
not  less  than  3  m.  when  proportionately  increased  on  the  other  side ; 
as  also  when  a  common  setback  space  is  established  if  proportion- 
ately increased  on  the  other  lot. 

(e)  It  may  be  decreased  by  2  m.  (but  in  no  case  to  less  than 
3  m.)  when  (except  the  sides  of  the  front  building)  within  7  m.  of 
the  side  space  the  neighboring  building  does  not  exceed  7.5  m.  in 
height. 

(/)     The  minimum  proportion  of  open  space  is  7Ao. 

Class  B  VIII 

(a)  Intended  for  one  and  two  family  houses  on  lots  with  a  rear 
building  line.  For  4  m.  from  the  neighbor's  side  boundary,  the  build- 
ing must  not  extend  back  from  the  front  building  line  more  than  16 
m. ;  or  at  a  greater  distance  from  the  neighbor's  side  line,  more  than 
20  m. ;  but  subsidiary  buildings  may  to  the  entire  width  of  the  lot 
extend  back  20  m. 

(6)  The  provisions  of  B  VII  (&)  apply  except  that  the  depth  is 
25  m.  for  3  m.  from  the  neighbor's  side  line. 

(c)  The  minimum  side  space  for  two  houses  is  4  m. ;  for  three 
houses  5  m.  By  exception  groups  of  not  more  than  five  small  houses 
may  be  licensed,  in  which  cases  the  side  setback  for  the  group  is : 

If  the  group  consists  of  not  more  than  three  such  houses    2  m. ; 
"    "        "  "        "     "        "        "     four       "        "          3m.; 

"    "        "  "        "     "        "         "    five        "        "          4  m. 

Double  houses  must  maintain  a  side  setback  of  4  m.  or  if  erected 
as  small  houses  2  m. 

(rf)  The  provisions  of  B  VII  (d)  apply  except  that  the  minimum 
side  space  is  2.5  m. 

(e)  Except  to  groups  of  small  houses,  the  provisions  of  B  VII 
(e)  apply;  bnt  the  decrease  is  1.5  m.  and  the  minimum  3  m. 

(/)     The  minimum  proportion  of  open  space  is  %o. 

but  for  lots  with  one  small  house  only,  J4. 

No.  4.    A  COMPARISON  OF  THE  COLOGNE,  FRANKFORT,  KARLSRUHE 
AND  MUNICH  ZONING  PROVISIONS 

For  facilitating  comparison  between  them,  the  zoning  provisions 
of  the  four  cities  named  are  here  given  in  tabular  form.  All  but  the 
Cologne  table  are  translations  of  the  tables  in  the  official  or  standard 


262 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


editions  of  the  building  ordinances  in  question;  and  the  Cologne  table 
was  prepared  from  the  Cologne  ordinance  in  form  to  correspond  with 
the  other  tables. 

No.  1.    COLOGNE  BUILDING  CLIMES 
Ordinance  adopted  Avgutt  9,  1913 


cuw1 

Char- 
acter 

Maxi- 
mum 
No.  of 
stories 

Maxi- 
mum 
height 
in 
meters 
to  top 
of 
cornice 

Minimum    per 
cent  of  open 
(pace  on  lot* 

Groups    maxi- 
mum   No.    of 
house*   and 
length  of 
front 

Mini- 
mum 
tide 
space 
in 
meters* 

Depth    of    front 
garden  (g)  and 
width  of  side 
space  (s)  not 
reckoned  as 
open  space 

Inner 

Corner 

ia« 

Ib 

at- 
tached 

44 
44 
44 
44 
44 

4  +  R 

44 

20 

25 

20 

(f)  «  m. 

35 

25 

Ic 

50 

80 

Id 
II* 

80 

3  +  R 

15 

50 

80 

lib 

60 

Ilia 

2  +  R 

12.5 

60 

30 

(«)  6  m. 

Hlb 

C  +  2 
&R 

15 

70 

IVa 

de- 
tached 

2&R 

12.5 

60 

30 

2  to  80  m. 

6 

(g)  6  m. 

IVb 

C  +  2 
*R 

15 

3    and    4    to 
50  m. 

6 

(g)  5  m. 
(a)  6  m. 

Va 

"vb 

groups 

44 
M 

2+R 

44 

12.;, 

50 

30 

7  to  70  m. 

i 

(g)  5  m. 

60 

Vc 

C  +  2 
&R 

15 

I 

(g)  5  m. 

VI 

de- 
tached 

3  +  R 

15 

60 

30 

2  to  45  m. 

e 

(•)  6  m. 

m.  =  Meter  a. 

R.  =  Roof  story,  between  the  top  story  over  the  attic,  over  the  joisU. 

C.   =  Cellar  story. 

1  The  development  of  a  lot  in  more  than  one  building  etnas,  is  governed  by  the 
provisions  which,  in  number  of  stories  and  open  space,  require  the  less  intensive  use. 

1  Business  structures,  with  no  dwelling*  in  them  but  for  janitor,  etc.,  where  under 
the  existing  regulations  the  street  width  permits  may  have  6  stories  (in  addition  to  cellar 
•nd  roof  story)  on  condition  that  they  leave  30  per  cent  (comers  25  per  cent)  of  lot 
open  ;  amendment  of  Mar  1.  1919.  The  same  amendment  makes  certain  modifications  of 
structural  requirements  for  small  houses,  and  one-family  house*. 

•There  are  also  rear  building  lines,  in  certain  caaea.  Where  an  interior  common  play- 
ground, of  at  least  5  per  cent  of  the  ground  are*  of  the  block,  is  provided  and  perma- 
nently secured  by  agreement  with  the  City,  the  area  of  each  lot  may  be  covered  by 
building*  up  to  5  per  cent  in  excess. 

4  In  all  classes,  buildings  must,  im  a  rule,  wherever  building  on  the  boundary  line  ii 
permitted  at  all,  he  located  titlur  <>n  (hat  line,  or  with  a  setback  from  It  of  at  least 
S.5  meU-n,  and  the  same  space  must  be  preserved  between  buildings  and  part*  of 
building*  on  the  same  lot.  not  built  against  one  another.  Compart  the  Frankfort  pro- 
visions in  following  UUc. 


No.   2.     Fi 
liuildin 


I 

D 

A 

Inner 
City 

Mixed    Dis- 
trict of  the 
Inner    Zone 

Residential   District  of 
the  Inner  Zone 

Building  Zones  or   Classes 

Attached 
Building 

"Character" 
of    Building 
See   E 

Building    groups    up 
to  80  m. 
3  m.  side  space 

In  general 

Street 

Street  width  plus  2/3  front 

Height  of  Front 

width 

Buildings 

+  2  m.  or 
8    m. 

Maximum 

20  m. 

18 

m. 

l«m. 

Part   of 

streets  up 

Interior    lot 

1/4 

4/10 

og 

Double      and 
rear    dwell- 

to 14  m. 

only  2, 

Open   spaces  on 
the   Lot 

- 

II. 

a  « 

ings,    10    sq. 
m.  and  dwell- 
ings     with 

and  on 
wider 
streets 

more   than   4 

only  3 

Corner  lot 

1/8 

3/10 

—  », 

rooms,  an  ad- 

stories, 

w 

ditional  1/20. 

under 

restric- 

In  general 

Width    of 
Court  in 

Width  of 
Court  in 

Width  of 
Court  in 

tions  of 
Police 

Height   of   Rear 
Buildings 

front 

+  2m. 

front 

front  when 
30  m.  distant 
from   build- 

Ord.   of 
Apr.   8, 
1910, 

ing  line. 

Sec.  12, 

Maximum 

20  m. 

13 

m. 

13  m. 

I. 

Front  Build- 

6 

4  +  l/«  D. 

4  +  1/2  D. 

ings 

Number    of    resi- 

dential stories 

Rear    Build- 

ings 

4 

3  +  D. 

3  +  D. 

When    rear    dwelling    er 

Norn:  merits.    1/10   additional 

D.  =  Roof  story  on   which  residence   is  permitted. 
m.=  Meters. 

In  the  residential  district  of  the  inner,  outer  and  rural  district  zones,  as  well  as  in  the  sub 
There  are  parts  of  the  factory  district,  to  which  the  provisions  of  Sec.  12.  No.  VI,  1-2,  spj 


THE  MAIN 

Classes 


F 

B 

c 

G 

H 

of  the 

Mixed 
trict  of 

Dis- 
the 

Residential   district  of 

Residential 
District     of 

Suburban 

Factory 

I 

rural      dis- 
trict zone 

the  Outer  Zone 

the    rural 
district  zone 

DOOM 
District 

District 

ing    on 
front 
icrwise, 
80    m. 
:*. 

Building 
groups  up  to 
80  m.     3  m. 
side  space. 

4  m.  side  space.     Groups  up  to  80  m., 
only  by  exemption,  and  under  certain 
conditions. 

Detached 
building. 
Double  houses 
permitted  by 
exemption. 

Attached 
building. 

Street  width  plus  2/3  front  garden 

depth 

Street    width 

+   2  m. 

Part    of 

Zone  in 
wh  ich 

16  m 

18  m. 

16   m. 

16  m. 

20  m. 

in 

build- 
ings 

5/10 

oc 

Double   and 
rear   houses 

Part    of 
Zone    in 

5/10 

"8  g 

d 

with  3 
stories, 
the  roof 

, 

•  1 

>  a 
"Z  !* 

10    sq.     m. 
and     dwell- 
ings    with 

which    re- 
strictions 
of  Sec.  12, 

^ 

>  a 

15 

£* 

7/10    of 
Building 
lot 

At  least  3/10 
if     area     be- 
hind    build- 

story 

ii 

more     than 

No.    II,    1. 

"3  5 

_c 

ing   line. 

not   to 

4  rooms,  an 

A.     H.     of 

M  2 

£ 

be  fitted 
up     for 

4/10 

additional 
1/10 

Police  Ord. 
of  Apr.   8, 

4/10 

JS 

Q 

inde- 

1910     ap- 

pendent 

Width 

of  Court  in  front 

plies. 

Width  of  Court  in  front  when 

Width  of 

dwell- 

When 45  m. 

45    m.    from    building   line. 

Court    in 

ing,  or 

from  Build- 

Independent 

front    + 

restric- 

ing line. 

dwellings  for 

2   m. 

tion    of 

rent,    for- 

Sec. 12, 

bidden. 

I,     No. 
IV,    of 

9   m. 

9  m. 

9  m. 

6   m. 

20  m. 

Police 
Ord.  of 

2  +  D    on 

Streets  up  to 

2  +  D    on 

Streets  up 

2  +  D  on  Streets 
up     to     18     m.  ; 

2  +  D 

Number   of 
stories    not 

Apr.    8, 

18  m.  ; 

else- 

to  14  m.  ; 

elsewhere  3 

+  D. 

limited. 

1910, 

where  3  +  D. 

elsewhere 

Dwellings 

applies. 

3  +  D. 

only  for 

owner  and 

superintend- 

2 +  D 

2  +  D 

2+D 

2  +  D 

1  +  D 

ing    staff. 

more   than   three   apart- 
rft  free  from   structures. 


district,  manufacturing  structures  are  forbidden, 
.re  streets,  running  through  various  zones  or  classes,  on  which  four  stories  are  permitted. 


ZONING  IN  EUROPE 


263 


w    •> 

S   >H 

355 


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CO 

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IO 

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0 

0 

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CO 

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rH 

rH 

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a 

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264 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


No.  4.      Mr.sicit    Biii.wsG   CLASSES 
Ordinance  adopted  April   SO,   1904 


Court, 

Front 

Rear 

Greatest 

Greatest 

mini- 

Class 

Char- 
acter 

building* 
maximum 

IMI.    of 

building* 
maximum 

III'.     »>( 

permissible 
height, 
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permissible 
height, 
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mum 
area  in 
frac- 

Groups 
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length 

Side 

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least 

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stories 

buildings 

buildings 

tions  of 

lot  area 

attached 

1 

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4 

p 

V 

f 

2 

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4 

4 

18  in. 

18  m. 

1/3 

3 

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2 

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4 

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S 

2 

15  m. 

12  m. 

1/3 

15 

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2 

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12  m. 

0  m. 

1/3 

« 

detached 

4 

4 

20  m. 

20  m. 

i/st 

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7  m. 

7 

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2 

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l/3t 

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0  m. 

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2 

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10  m. 

19 

" 

2 

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12  m. 

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36  m. 

10  m. 

/  Residential  buildings;  others,  no  limit. 
¥>  Private  buildings,  not  more  than  equal  to  width  of  street  and  front  gardens ;  but  on 

streets  less  than   12  m.  broad,   12  m.  is  allowed.     The  maximum  height  for  re»i- 

ili  1. 1  M!   buildings  ia  22  m. 

•  Without  independent  residential  apartments  to  rent 
f   l.itflit  courts  not  allowed. 

)  In  blocks  in  which  this  class  is  found,  offensive  industries,  etc.,  not  permitted. 
|  Sufficient  for  health.   « tc. 

GENERAL  NOTE:     Except  in  clam  1.  front  ami  side  buildings.  In  so  far  M  they  exceed 

22  m.   in  depth,  are  regarded  as  rear  buildings. 

Except  in  class  1.  the  roof  story  may  be  utilized  for  residence  only  to  half  iu  area. 
In  industrial  areas,  exception*  are  allowed  for  industrial  building*, 
m.  =  meters. 


CHAPTER  III 
ZONING  IN  CANADA  AND  THE  UNITED  STATES 

Early  Zoning  on  American  Continent. — Many  years  be- 
fore zoning,  as  we  now  understand  it,  was  employed  anywhere 
on  the  American  continent,  measures  embodying  something  of 
the  zoning  principle,  although  not  known  as  zoning  regulations, 
were  passed,  and  restrictions  based  on  them  imposed,  both  in 
Canada  and  in  the  United  States.  In  1899  a  Federal  statute 
since  frequently  amended  1  was  enacted  limiting  the  heights  of 
buildings  by  zones  in  Washington,  D.  C. ;  and  in  1904  Toronto 
under  sees.  409-410  of  the  Ontario  Municipal  Act,  began  to 
create  residential  and  industrial  districts.  In  Canada  since 
1909  zoning  along  English  lines  has  been  authorized  in  a  num- 
ber of  Provinces  by  town  planning  acts  modeled  on  the 
English  act  of  that  year.2  Lately,  howrever,  to  some  extent, 
Canada  has  authorized  zoning  ordinances  like  recent  zoning 
regulations  in  the  United  States.3 

In  this  country,  prior  to  the  zoning  of  New  York  City  in 
1916,  only  acts  allowing  the  less  complete  sorts  of  zoning  were 
passed.  Thus  during  this  period  in  Baltimore  4  and  Indian- 
apolis 5  a  height  limit  for  a  small  area,  lower  than  the  limit 

*30  U.  S.  Stat.  922,  ch.  322  (March  I,  1899)  ;  32  ibid.  102.2;  33  ibid.  14, 
ch.  158  (Feb.  16,  1904)  ;  36  ibid.  452,  ch.  263  (June  i,  1910).  See  also 
Building  Regulations  of  District  of  Columbia. 

3  For  a  list  of  these  acts,  see  p.  510,  note  27. 

3  See,  for  instance,  the  amendment  of  the  Municipal  Art  of  Ontario, 
Laws,  1921,  ch.  63;  also  the  Manitoba  Town  Planning  Act,  1916,  ch.  114 
sees.  5,  6,  and  7,  and  schedule  A,  for  the  zoning  of  central  area ;  and  the 
Saskatchewan  Town  Planning  Act,  Rev.  Stat.  1920,  ch.  104  Part  n,  for 
the  approval  by  the  municipality  of  sub-divisions  beyond  and  within  two 
miles  of  its  limits;  reference  to  which  will  be  found  on  p.  313. 

*  Laws  Maryland,  1904,  ch.  42,  held  to  be  constitutional  in  Cochran  v. 
Preston,  108  Md.  220  (1908). 

5  By  ordinances  passed  in  1905  and  1912;  see  Report  of  Heights  of 
Buildings  Commission,  New  York  City,  Dec.  23,  1913,  p.  35. 

265 


a66  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

for  the  city  as  a  whole,  was  fixed ;  in  Boston  6  height  districts 
covering  the  entire  city  were  created,  and  in  several  cities  resi- 
dential districts  were  established  from  which  were  excluded 
certain  industries  and,  in  some  cases,  also  business  and  even 
multiple  dwellings.  As  a  rule,  in  these  regulations,  the  prior 
petition  or  subsequent  consent  of  a  proportion  of  the  property 
owners  of  the  district  was  a  requisite  to  its  creation.7  This 
provision  obviously  makes  the  use  zoning  of  the  city  in  accord- 
ance with  any  plan  difficult  if  not  practically  impossible;  and 
unless  action  by  the  city  in  the  general  interest  is  also  required, 
such  zoning  is  illegal.8  If  the  districts  could  be  established  by 
the  consent  of  the  property  owners  alone,  this  would  in  effect 
be  delegating  to  them  the  power  to  establish  municipal  regula- 
tions, which  obviously  cannot  legally  be  done,  although  the 

'Special  Acts  1904,  ch.  333;  1905,  ch.  383;  1907,  ch.  416;  1912,  ch.  582; 
1914,  ch.  786;  1915,  ch.  333;  1919,  ch.  156.  For  a  full  account  of  the  Boston 
regulations,  see  the  Report  of  the  Heights  of  Buildings  Commission,  just 
cited,  p.  134. 

'  See  Report  of  Heights  of  Buildings  Commission,  New  York  City, 
1913,  P.  38. 

•Ordinances  admitting  into  or  excluding  from  a  locality  a  given  use 
upon  the  consent  of  a  percentage,  less  than  all,  of  the  property  owners  of 
that  locality  is  void  as  an  improper  delegation  of  governmental  power. 

California. — In  re  Quong  Wo,  13  Fed.  Rep.  229  (1882)  ;  Ex  parte  Sing 
Lee,  96  Cal.  354  (1892),  Coon  v.  Bd.  of  Public  Wks.,  7  Cal.  App.  760 
(1908);  see  Sam  Kee  v.  Wilde,  183  Pac.  Rep.  164  (1919). 

Colorado. — Denver  v.  Rogers,  46  Col.  479  ( 1909)  ;  Curran  Co.  v.  Den- 
ver, 47  Col.  221  (1910)  ;  Willison  v.  Cooke,  54  Col.  320  (1913). 

Delaware. — Dangel  v.  Williams,  n  Del.  Ch.  213   (1916). 

Illinois. — Chicago  v.  Gunning  System,  214  111.  628  (1905)  ;  People  ex 
rel.  Friend  v.  Chicago,  261  111.  16  (1913). 

Kentucky.— Telford  v.  Belknap,  126  Ky.  244  (1907). 

Missouri. — St.  Louis  v.  Russell,  116  Mo.  248  (1893);  Hays  v.  Poplar 
Bluff,  263  Mo.  516  (1914). 

Xsbraska. — State  v.  Withnell,  78  Neb.  33   (1907). 

/  irginia.— Eubank  v.  Richmond,  HO  Va.  749  (1910),  226  U.  S.  137 
(1912). 

ll'isconsin. — State  ex  rel.  Nehrbass  v.  Harper,  162  Wis.  589  (1916). 

As  a  prerequisite  to  action  by  the  public  authorities  or  as  a  waiver  of  a 
prohibition,  a  provision  for  consent  is  valid. 

Delaware. — Myers  y.  Fortunate,  no  Atl.  847  (1920). 

District  of  Columbia.— Weeks  v.  Heurich,  40  App.  D.  C  46  (1913)- 

Illinois. — City  of  Chicago  v.  Stratton.  162  111.  494  (1896);  People 
ex  rel.  llusching  v.  Ericsson,  263  111.  368  (1914)  :  People  <  'lor  v. 

Village  of  Oak  Park,  266  111.  365  (1914)  :  Cusack  Co.  v.  City  of  Chicago, 
367  111.  344  (1915)  ;  242  U.  S.  526  (1917). 

New  York.— In  re  Russell,  158  N.  Y.  Supp.  162  (1916). 

Washington.— City  of  Spokane  v.  Camp,  50  Wash.  554  (1908);  Shep- 
ard  v.  Seattle,  59  Wash.  363  (1910). 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        267 

favorable  action  of  the  property  owners  may  be  made  a  pre- 
requisite to  action  by  the  municipal  authorities ;  and  in  this  way, 
in  most  of  the  regulations,  action  by  these  authorities  in  the 
general  interest  is  in  fact  provided  for. 

Los  Angeles  Ordinance. — The  most  fully  zoned  city  of  the 
earlier  period  was  Los  Angeles,  California.  The  Los  Angeles 
zoning  rules  are  of  interest  both  in  themselves  and  because  of 
their  influence  upon  subsequent  zoning  on  the  Pacific  Coast. 
The  many  ordinances  regulating  different  features  of  the  city, 
in  various  sections  of  it,  were  passed  from  time  to  time,  the  first 
being  enacted  in  1909.  By  1915  they  had  come  to  cover,  in  one 
way  or  another,  the  entire  city.  They  divided  it  into  one  large 
residence  district,  in  which  only  the  very  lightest  of  manu- 
facturing was  allowed;  twenty-seven  industrial  districts,  in 
which  all  industries  were  permitted;  and  about  a  hundred 
"residence  exception"  districts,  so  called  because,  although 
scattered  throughout  the  residence  district,  all  but  the  heavy 
and  objectionable  industries  might  be  pursued  in  them. 

Of  most  interest  were  the  provisions  with  regard  to  the 
residence  exceptions.  Classified  as  such  were  the  business  sec- 
tion of  the  city,  known  as  Fire  District  No.  I,  and  the  extensive 
port  district,  entirely  undeveloped  and  only  recently  annexed 
to  the  city.  Next  in  size  was  a  district  about  a  half  mile  square, 
and  next  to  that,  one  covering  two  blocks.  The  other  and 
typical  residence  exceptions,  each  consisting  of  one  or  at  most 
two  city  lots,  equaled  in  the  aggregate  less  than  one  per  cent 
of  the  residence  district  in  which  they  were  situated.  If  any 
person  wished  to  establish  an  industry  not  of  the  heavy  or 
objectionable  type  in  the  residence  district,  the  city  might  and 
in  practice  always  did  require  him  to  obtain  the  consent  of  sixty 
per  cent  of  the  owners  of  property  affected.  Objectionable  in- 
dustries, already  established  in  the  residential  district,  were 
compelled  to  remove  or  cease  operation;  but  in  other  respects 
the  zoning  was  not  retroactive.  Since  1915  the  regulations 
have  been  frequently  amended  and  many  new  ones  passed.9 

*  Districts  rarely  if  ever  found  elsewhere,  such  as  cow  districts,  under- 
taking districts,  motion  picture  districts,  public  garage  districts,  as  well  as 
billboard  districts,  and  residential  and  industrial  districts,  have  been  cre- 
ated in  this  way  by  ordinances  passed  from  time  to  time. 


268  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

New  York  City  Zoning.10 — The  first  city  in  the  United 
States  to  adopt  a  systematic  and  complete  plan  of  zoning  cover- 
ing practically  the  entire  city,  both  as  to  use  and  as  to  bulk,  was 
New  York.  In  the  New  York  City  zoning  resolution  the 
street  in  all  cases  is  taken  as  the  districting  unit.  Based  on  it, 
the  city  is  divided  into  residence,  business  and  unrestricted  use 
districts — the  unrestricted  districts  being  intended  especially 
for  manufacturing — and  height  and  area  bulk  districts.  The 
use,  height  and  area  districts,  although  studied  with  reference 
to  one  another,  are  laid  out  each  with  its  own  boundaries.  The 
resolution  is  not  retroactive  but  applies  only  to  the  erection  of 
future,  and  the  change  in  use  of  existing,  structures. 

The  Use  Districts. — In  residence  districts  only  residences 
(including  tenements  and  other  multiple  dwellings),  various 
public  and  semi-public  buildings,  and  farming  and  nursery 
structures,  with  their  usual  accessories,  are  permitted;  a  busi- 
ness, a  use  not  on  the  same  lot,  or  a  private  garage  for  more 
than  five  motor  vehicles,  not  being  considered  an  accessory. 

In  business  districts  both  residence  and  business  uses  are 
permitted,  but  forty-four  industries  specifically,  and  all  others 
generally,  which  are  noxious  or  offensive  by  reason  of  the  emis- 
sion of  odor,  dust,  smoke,  gas  or  noise,11  and  other  industry  in 
excess  of  25  per  cent  of  the  total  floor  space  of  the  building,  or 
the  equivalent  of  the  area  of  the  lot,  are  excluded.  This  lim- 

MThe  administrative  features  of  this  and  the  other  zoning  ordinances 
are  considered  in  Part  VII  Chapter  III. 

u  It  will  be  noted  that,  while  in  many  zoning  ordinances  the  list  of 
particular  industries  excluded  as  objectionable  from  a  business  or  light 
industry  district,  and  the  general  provision  so  excluding  them,  are  both 
placed  in  the  same  paragraph,  in  the  New  York  regulation  they  are  separ- 
ated as  much  as  possible  by  being  put  into  different  paragraphs  (see  the 
New  York  resolution,  sec.  4  (a),  and  (b),  to  be  found  on  p.  307  of  this 
work).  The  New  York  method  is  the  preferable  one.  There  is  a  principle 
of  statutory  interpretation,  often  referred  to  as  the  doctrine  of  "ejusdent 
generis,"  deep  rooted  in  our  law,  that  "When  general  words  follow  an 
enumeration  of  particular  things,  such  words  must  be  held  to  inclu<l<  only 
such  things  or  objects  as  are  of  the  same  kind  as  those  specifically  enumer- 
ated" (Gundling  v.  Chicago,  176  111.  340  at  345  (1898)  ;  see  generally  Suth- 
erland, Statutes  and  Statutory  Construction  (26  ed.  by  Lewis,  printed  by 
Callaghan  and  Co.,  Chicago,  1904).  sec.  4^^  and  cases  there  cited;  or  any 
similar  work).  To  the  layman  it  sci-ms  as  if  this  doctrine  often  renders 
general  expressions  used  in  connection  with  surh  (numerations,  meaniiiK- 
less.  It  is  in  the  endeavor  to  avoid  this  effect  that  the  New  York  resolu- 
tion is  drafted  as  above  stated. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        269 

ited  amount  of  inoffensive  industry  is  evidently  admitted  as  a 
necessary  adjunct  to  business. 

In  unrestricted  use  districts  there  are  no  use  zoning  regula- 
tions or  restrictions. 

Nonconforming  Bulks. — A  building  which  exceeds  the 
bulk  limits  allowed  new  buildings  in  the  district,  if  accidentally 
destroyed,  may  be  restored  in  its  original  bulk.  Any  wall  of 
such  a  building  declared  unsafe  by  the  city  authorities  may  be 
rebuilt  in  like  manner. 

Nonconforming  Uses. — The  New  York  zoning  resolu- 
tion is  the  first  to  provide  that  a  nonconforming  use  shall  be 
allowed  to  continue  so  long  as  it  remains  as  it  was  at  the  time 
of  the  adoption  of  the  resolution ;  but  that  any  change  in  it  or 
in  the  building  where  it  is  located  may  and  should  be  taken  ad- 
vantage of  as  a  method  of  obtaining  the  greatest  practicable 
approach  to  conformity.  The  requirements  of  the  New  York 
ordinance  to  this  end  are  less  severe  than  those  of  the  later 
ordinances  in  other  cities,  as  well  as  less  clearly  thought  out  and 
expressed.12 

Garages. — One  of  the  most  difficult  matters  to  deal  with 
in  use  zoning  is  the  location  of  garages.  The  garage  is  at  once 
a  neighborhood  necessity  and  a  neighborhood  nuisance  and 
menace.  In  the  New  York  resolution  private  garages  accom- 
modating not  more  than  five  motor  vehicles  are  admitted  into 
residential  and  business  districts  as  accessories ;  13  but  others 
are  excluded  as  noxious  industries.  The  framers  of  the  resolu- 
tion realized  that  there  must  be  public  garages  in  the  immediate 
neighborhood  of  residence  and  business.  This  need  was 

"These  provisions  are  given  in  full  on  p.  310  of  this  work. 

"At  present  the  accessory  garage  in  a  residential  district  must  be  on 
the  same  lot  as  the  residence  of  its  owner  or  occupant,  must  be  used 
exclusively  by  him,  and  cannot  house  a  business  or  industrial  car.  It  has 
been  suggested  that  the  owner  or  occupant  should  be  allowed  to  rent  out 
the  space  for  one  non-business  or  non-industrial  car  in  such  a  garage  or 
keep  one  light  business  or  industrial  car  for  his  own  use  in  it ;  and  that 
this  could  safely  be  permitted  if  the  number  of  cars  allowed  in  an  acces- 
sory garage  were  reduced  from  five  to  three.  In  smaller  places,  under 
later  ordinances,  not  only  are  these  greater  privileges,  as  a  rule,  allowed 
but  often  the  accessory  garage  need  not  be  on  the  same  lot.  In  many  of 
these  ordinances,  the  number  of  cars  allowed  in  the  private  garage  varies 
in  proportion  to  the  frontage  of  the  lot. 


270          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

already  provided  for  to  some  extent  by  existing  garages  in  such 
neighborhoods,  which  were  at  liberty  to  remain  and  continue 
in  operation.  The  need  of  additional  garages  in  these  neigh- 
borhoods was  met  partly  by  the  location  and  bounding  of  the 
various  districts,  the  commission  to  this  end  increasing  "the 
number  of  small  unrestricted  sections  within  convenient  access 
of  the  local  residence  and  business  centers."  14  This  need  was 
also  in  part  met  by  giving  the  Board  of  Appeals  discretionary 
power  to  permit  in  a  business  district  the  erection  or  extension 
of  a  garage  or  stable  in  a  block  where  a  public  garage  or  stable 
had  existed  at  the  time  of  the  passage  of  the  resolution,15  and 
to  allow  a  garage  in  any  district,  with  the  consent  of  80  per 
cent  of  the  owners  of  the  frontage  affected. 

The  Height  Districts. — Height  districts  of  three  quarter, 
one,  one  and  a  quarter,  one  and  a  half,  two,  and  two  and  a  half 
times  the  street  width  at  the  street  line,  are  created,  a  greater 
height  being  allowed  as  setbacks  are  made.  Streets  less  than  50 
and  more  than  100  feet  wide  are  regarded  as  50  and  100  feet 
respectively  in  width.  For  100  feet,  and  in  the  case  of  a 
corner  building  for  150  feet,  back  on  a  narrower  street,  the 
height  regulations  of  the  wider  street  govern.  Elevator  bulk- 
heads, parapets,  cornices,  etc.,  to  a  limited  extent,  and  spires, 
chimneys,  etc.,  to  any  extent,  are  allowed  to  transcend  these 
limits.  There  is  relief  in  certain  cases  where  a  new  building 
will  face  structures  already  above  the  prescribed  limits;  and 
towers  may  go  to  any  height,  if  not  of  more  than  25  per  cent 
of  the  lot  area,  and  if  they  observe  given  setbacks  from  streets. 

The  Area  Districts. — There  are  five  area  districts  created 
— A,  B,  C,  D,  and  E — in  which  the  amount  of  prescribed  open 

"Report  of  Commission  on  Building  Districts  and  Rfstrictions  already 
referred  to. 

"The  resolution  as  originally  worded  in  this  matter  was  interpreted  to 
allow  such  location  in  the  block  front  only  on  the  same  side  of  the  street 
as  that  of  the  existing  garage  or  stable  (Beinert  v.  Miller,  AV:r 
Law  Journal,  June  18,  1917,  p.  1045)  but  was  amended  to  allow  such  loca- 
tion on  either  side  of  the  street  in  accordance  with  the  orininril  intention 
of  the  framers  of  the  resolution.  The  discretion  was  granted  in  this  form 
because  of  the  fact  that  in  a  street  front  where  a  garage  or  stable  already 
exists,  additional  structures  of  this  sort  do  not  change  the  neighborhood 
and  do  damage  as  they  do  in  a  street  front  where  there  had  been  none 
previously. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        271 

space  on  the  lot  becomes  progressively  greater.  Thus  in  an 
"A"  district  a  court  of  one  inch  in  least  dimension  for  each 
foot  in  height  of  the  building  is  all  that  must  be  left  uncovered ; 
while  in  an  "E"  district,  in  so  far  as  it  is  also  a  residential  dis- 
trict (as  it  usually  is),16  interior  lots  must  leave  50  per  cent  of 
their  area  free  of  building  at  the  curb  level  and  70  per  cent  of 
it  open  at  the  level  eighteen  feet  above  the  curb;  all  buildings 
being  at  least  semi-detached.  In  the  "C"  and  "D"  districts  the 
owner  setting  aside  10  per  cent  of  the  lot  area  for  the  joint 
recreational  space  of  occupants  of  the  plot,  in  addition  to  other 
required  open  space,  may  build  in  accordance  with  the  require- 
ments of  district  "B"  and  "C,"  respectively. 

Preparation  of  New  York  Resolution. — The  New  York 
resolution  and  the  plan  for  the  division  of  the  city  into  districts 
in  accordance  with  it,  adopted  by  the  Board  of  Estimate  and 
Apportionment  of  the  city  in  1916,  was  the  result  of  long  and 
careful  study.  In  1913  the  city  appointed  a  commission  on 
"Height,  Size  and  Arrangement  of  Buildings,"  called  for  con- 
venience the  "Heights  of  Buildings  Commission."  It  was  a 
citizen  commission,  composed  not  only  of  business  men,  law- 
yers, representatives  of  labor,  students  of  social  problems,  tax- 
ation and  city  planning,  but  of  men  representing  real  estate 
interests  in  all  its  phases,  such  as  architects,  builders,  bankers, 
insurance  men  and  real  estate  brokers  and  owners.  The  prin- 
ciple upon  which  these  men  were  selected  was  that  a  measure 
profoundly  affecting  so  many  and  so  diverse  interests  could  be 
framed  wisely  and  acceptably  only  by  representatives  of  the 
various  interests  affected  by  it.  This  body  of  men  studied  the 
subject  of  building  regulation  in  other  cities  of  this  country 
and  abroad.  They  were  assisted  by  a  staff  which  investigated 
and  presented  to  them  in  detail  the  existing  conditions  in  this 
city.  The  members  of  the  commission  in  this  pioneer  under- 
taking, as  may  well  be  supposed,  entered  upon  their  labors  with 
widely  diverse  views ;  but  when  their  work  was  finished  they 

"Since  the  "E"  area  restrictions  were  devised  as  an  aid  to  housing 
(see  p.  274).  Corner  lots  are  required  to  leave  open  30  per  cent  at  the 
curb  level  and  60  per  cent  at  a  level  18  feet  above  the  curb.  The  provision 
is  sec.  15  of  the  New  York  City  building  zone  resolution  printed  in  full  on 
p.  316  of  this  work. 


272  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

were,  with  one  exception,  unanimous,  not  only  in  their  opinion 
that  zoning  was  essential  to  any  system  of  building  regulation, 
but  also  in  their  agreement,  after  consideration  of  many  and 
most  diverse  systems  of  zoning,  to  support  a  specific  and  de- 
tailed plan  as  best  suited  to  accomplish  the  zoning  of  New  York 
City.  As  a  result  of  their  report  a  second  commission,  chosen 
in  accordance  with  the  same  principles,  was  appointed  to  per- 
fect and  apply  the  plan  outlined.  During  the  progress  of  their 
work  both  commissions  constantly  consulted  with  civic  and 
business  bodies  and  private  citizens,  thereby  obtaining  valuable 
information  and  advice  and  also  familiarizing  the  public  with 
the  project,  at  that  time  so  novel.  The  result  was  that  the  reso- 
lution and  plan,  with  amendments  in  detail,  largely  the  result  of 
the  appearance  at  the  public  hearings  of  the  many  people  per- 
sonally interested,  but  with  no  radical  changes,  were  formally 
adopted  and  have  ever  since  been  regarded  as  an  achievement 
of  permanent  value. 

Importance  of  Zoning  in  New  York. — The  zoning  of 
New  York  City  is  one  of  the  great  events  in  the  history  of 
city  planning  in  this  country ;  for  to  it  in  large  measure  is  due 
the  recent  increase  in  zoning  regulation  in  the  United  States 
and  a  stimulation  of  interest  in  it  so  considerable  as  to  make  it 
reasonably  certain  that  zoning  here  will  become  general.  Of 
still  greater  service  has  been  the  systematic  character  of  that 
zoning.  To  it  is  due  the  fact  that  everywhere  in  this  country 
the  endeavor  is  made,  in  a  scheme  of  bulk  and  use  regulation 
covering  the  entire  city  and  conforming  to  local  conditions 
existing  and  desired,  to  relate  each  district  to  each  of  the 
others  in  the  unity  of  the  city  as  a  whole.  Such  zoning  is  real 
city  planning.17 

"  Typical  of  the  feeling  of  city  planners  with  regard  to  the  New  York 
resolution  is  the  following  statement  of  a  Philadelphia  official  and  expert 
made  in  1917,  while  engaged  in  preparing  a  zoning  ordinance  for  that  city: 

"In  carrying  on  the  work,  the  trail  blazed  by  the  \e\v  York  Com- 
mission has  been  followed  in  a  general  way,  notwithstanding  the  warn 
ings  of  some  of  the  New  York  experts;  for.  after  a  stwlv  of  about 
liing  that  has  been  done  and  written  in  this  country  in  reference  to 
zoning,  we  have  felt  that  most  of  it  outside  of  New  York  has  been  done 
hastily  without  sufficient  preliminary  study  or  consideration,  and  from  such 
individualistic  viewpoints  that,  unless  there  is  a  more  general  recognition 
of  certain  underlying  principles  and  greater  uniformity  in  practice,  the 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        273 

Faults  of  New  York  Zoning. — Admirable  as  the  New 
York  zoning  resolution  is  in  general  method  and  fundamental 
principles,  it  is  open  to  criticism  in  many  details.  To  what  ex- 
tent the  work  of  the  commission  could  have  been  better  done 
is  a  disputed  question.  Some  of  the  friends  of  zoning  in  New 
York  who  supported  the  zoning  resolution  most  strongly  en- 
deavored, while  its  final  form  was  still  in  doubt,  to  secure 
changes  in  it  which  have  ever  since  been  generally  regarded  as 
desirable.  Certainly,  however,  some  of  its  shortcomings  are 
due  not  so  much  to  the  fact  that  it  is  pioneer  work  as  to  the 
conditions  with  which  the  zoners  had  to  deal.  This  the  New 
York  zoners  were  the  first  to  point  out,  feeling  as  they  did  that 
"New  York  has  sinned  so  greatly  in  the  past  that  its  districting 
has  had  to  be  based  altogether  too  much  on  congested  sky 
scrapers  and  tenement  house  conditions."  "Other  cities  can 
do  better  than  we  [New  York]  and  will  be  most  culpable  if 
they  fail  to  do  so."  18 

Improvements  on  New  York  Zoning  in  Later  Regula- 
tions.— It  is  fortunate  for  the  future  of  zoning  in  this  coun- 
try that  many  other  cities  have  recognized  not  only  the  virtues 
but  the  defects  of  the  New  York  resolution,  and  have  corrected 
some  of  its  mistakes. 

The  Industrial  District. — In  the  New  York  resolution 
there  is  only  one  class  of  industrial  district;  in  later  ordinances 
there  are  usually  two,  one  for  light  industry  which  is  less 
objectionable,  and  the  other  for  heavy  industry,  most  in  need 
of  segregation. 

The  Single  Family  House  District. — In  the  New  York 
resolution  there  is  only  one  class  of  residential  district,  in  which 
both  the  one- family  house  and  the  tenement  are  allowed.  The 
importance  to  family  life  and  character,  of  the  house  which 
the  family  has  to  itself  is  generally  admitted,  and  the  fact  that 

progress  of  zoning  will  be  obstructed  by  the  misguided  zeal  of  its  best 
friends." 

It  must  be  remembered  that  in  1917,  the  excellent  work  of  so  many 
other  cities,  now  done  or  well  under  way,  was  not  available;  the  reference 
to  the  zoning  elsewhere  being  to  that  done  before  the  New  York  resolution 
was  passed. 

18  The  American  City  for  June  and  August,  1916. 


274  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  tenement  drives  out  the  single  house  in  any  section  where 
the  tenement  comes,  seems  clear.  In  the  New  York  resolution 
although  there  is  no  district  in  which  there  are  specific  provi- 
sions protecting  the  one- family  house,  the  "D"  districts  were 
created  in  the  attempt,  the  success  of  which  remains  to  be  seen, 
to  require  so  much  open  space  that  in  them  it  would  not  be 
profitable  to  erect  tenements.19 

The  fact  that  the  one- family  house  is  much  less  common 
in  New  York  than  in  other  communities  would  seem  to  render 
its  protection  more  imperative;  but  the  specific  protection  for 
it  was  omitted  in  the  New  York  ordinance  partly  because  they 
were  so  few  and  partly  because  it  was  feared  that  the  one- 
family  district  would  not  be  supported  by  the  courts.  The  later 
decisions  on  this  point  given  elsewhere  20  tend  to  show  that  the 
New  York  zoners  in  this  respect  were  ultra-conservative,  al- 
though no  student  of  the  subject  can  deny  that  there  were 
grounds  for  it  at  the  time,  or  claim  that  as  yet  the  question  is 
conclusively  settled  except  in  the  few  jurisdictions  where  the 

"The  "D"  and  "E"  area  districts  were  intended  for  residence.  In  the 
"E"  districts,  in  so  far  as  they  are  also  residence  districts,  buildings  must 
be  at  least  semi-detached,  50  per  cent  of  interior  and  30  per  cent  of  corner 
lots  being  left  open  at  the  curb  level  and  70  per  cent  and  60  per  cent  18 
feet  above  that  level.  The  "E"  districts  were,  however,  comparatively  few 
in  number  and  the  restrictions  were  imposed  practically  in  every  case  with 
the  consent  of  the  land  owners  of  the  districts  in  question.  The  commis- 
sion relied  principally  on  the  "D"  district  to  fill  the  need  of  a  district  in 
which  the  one-family  house  was  protected.  This  is  shown  by  the  statement 
in  their  tentative  report,  that  the  "D"  district  "is  intended  generally  for 
one  and  two-family  houses,  either  singly  or  in  rows.  Apartments,  how- 
ever, are  not  excluded  but  are  handicapped  by  restrictions  as  to  percentage 
of  lot  that  may  be  occupied  and  size  of  yards  and  courts."  In  "D"  dis- 
tricts, at  the  curb  level,  interior  lots  are  required  to  leave  40  per  cent,  cor- 
ner lots  20  per  cent,  of  their  area  open  and  certain  requirements  as  to 
courts  and  yards  are  made.  At  the  public  hearing  on  the  adoption  of 
the  resolution  as  a  whole,  it  was  pointed  out  that  in  such  a  district  a  five 
story  tenement  could  be  built  covering  the  permissible  sixty  per  cent  of 
the  lot,  which  would  accommodate  with  only  560  square  feet  each,  twenty- 
five  families.  It  is  to  be  feared  that  the  "handicap"  is  too  slight  to  ac- 
complish the  purpose  intended.  Unquestionably  tenements  are  needed  in 
a  city  like  New  York ;  probably  they  will  always  be  the  prevailing  type  of 
residence  there;  no  doubt  the  zoning  regulations  should  be  adapted  to 
that  fact;  but.  all  the  more,  in  every  practicable  way,  other  types  of  resi- 
dence should  be  encouraged  or  at  least  protected,  and  variety  and  flexi- 
bility stimulated. 

rf  Sec  p.  288. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        275 

courts  have  had  occasion  to  pass  on  it  under  modern  ordinances 
or  where  it  is  authorized  by  constitutional  amendment.21 

Without  awaiting  such  decisions,  many  other  communities 
where  the  single  family  house  was  the  prevailing  type  of  resi- 
dence have  adopted  the  one-family  house  district,  feeling  that 
zoning  would  fail  of  one  of  its  main  purposes  if  that  type  of 
dwelling  were  not  safeguarded. 

Faulty  Bulk  Regulations. — It  is  perhaps  especially  in  its 
bulk  limitations  that  zoning  in  New  York  City  is  open  to  criti- 
cism.22 It  was  no  doubt  inevitable  that  buildings  in  certain 
districts  should  be  allowed  to  attain  to  great  heights,  and  to 
occupy  a  very  large  proportion  of  the  lot  on  which  they  were 
erected ;  but  hardly  necessary  that  the  height  and  area  limits  in 
the  rest  of  the  city  should  be  as  high  as  they  are.  In  this 
respect  other  cities  have,  all  too  much,  followed  New  York. 
On  the  Pacific  Coast,  however,  these  restrictions  seem  to  be 
more  adequate.  This  is  illustrated  by  a  comparison  of  the 
existing  conditions  and  the  height  limitations  in  Brooklyn, 
New  York,  and  in  Alameda,  California.  Under  the  New  York 
resolution  over  large  areas  in  Brooklyn,  buildings  can  be  con- 
structed to  a  height  equal  to  one  and  a  half  times  the  width 
of  the  street  on  which  they  abut;  which  on  a  typical  sixty- foot 
street  is  the  equivalent  of  eight  or  nine  stories.  Most  of  the 
areas  where  this  rule  applies  are  now  developed  with  three  or 
four  story  buildings.  Nowhere,  in  a  city  with  vast  areas  still 
undeveloped,  is  a  height  limit  imposed  less  than  the  equivalent 
of  once  the  street  width;  with  the  right  to  go  higher  if  a  set- 

21  It  is  suggested  by  those  who  question  the  right  of  the  city,  under  sec. 
242b  of  its  charter,  and  statutes  in  other -jurisdictions,  to  create  one,  or 
one  and  two-family  districts  that  the  power  is  given  to  "regulate  and  re- 
strict the  location  of  trades  and  industries"  thus  creating  a  general  resi- 
dence district  by  requiring  trades  and  industries  to  locate  elsewhere.     But 
if  the  power  is  also  given  to  regulate  and  restrict  "the  location  of  buildings 
designed  for  specified  uses"  why  are  not  one-family  houses,  and  multi- 
family  houses,  uses,  each  of  which  may  be  regulated  and  restricted  so  as 
to  form  separate  districts? 

22  See  on  the  subject  a  pamphlet  issued  by  the  City  Club  of  New  York 
at  the  time  the  New  York  resolution  was  pending  before  the  Board  of 
Estimate  of  the  city  entitled  "Protecting  the  Future  of  New  York,"  re- 
printed in  the  report  of  the  Commission  on  Building  Districts  and  Re- 
strictions, p.  204. 


276          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

back  is  made.22"  Restrictions  like  these,  which  no  one  wishes  to 
exceed,  are  not  in  fact  restrictions  at  all.  In  Alameda  most 
of  the  city  built  up  with  two  and  a  half  story  houses  is  re- 
stricted to  two  and  a  half  stories.  It  is  a  significant  fact  in  this 
connection  that  men  own  their  homes  in  Alameda  as  a  rule, 
and  in  New  York  City  only  as  a  rare  exception.23 

m  Upper  Fifth  Avenue  has  recently  been  made  a  three-quarter  district. 
The  avenue  is  one  hundred  feet  wide,  permitting  a  building  height,  at  the 
street  line,  of  seventy-five  feet. 

™  In  this  connection  the  work  of  the  architect  Andrew  J.  Thomas  of 
New  York  is  of  interest.  Some  years  ago  Raymond  Unwin,  the  English 
city  planner,  wrote  a  pamphlet  for  the  Garden  City  and  Town  Planning 
Association  entitled  Nothing  Gained  by  Overcrowding  (P.  S.  King  \ 
London,  191  j).  Mr.  Unwin  shows  that  the  effort  of  the  developer  of  real 
estate  to  obtain  the  maximum  financial  return  from  a  given  tract  of 
building  land  often  results  in  an  intensive  utilization  of  it  at  the  expense 
of  an  amount  of  costly  roadway  so  excessive  as  to  defeat  his  object.  Mr. 
Thomas  has  proved  that  nothing  is  gained  by  overbuilding.  In  one  of  t he- 
outlying  boroughs  of  New  York  City  accessible  to  the  city  center,  in  a 
zone  where  at  most  seventy  per  cent  of  interior  and  ninety  per  cent  -if 
corner  lots  may  be  covered,  Mr.  Thomas  has  built  apartments  five  and  six 
stories  in  height,  occupying  a  large  fraction  or  all  of  a  city  block.  These 
apartments,  covering  forty-five  per  cent  of  the  lot,  yield  a  larger  net  return 
than  apartments  in  the  same  neighborhood  of  the  same  height,  costing  the 
same  amount  per  cubic  foot,  on  land  of  the  same  value,  renting  f 
same  price  per  square  foot,  which  cover  seventy  per  cent  of  the  lot.  In 
smaller  units  this  principle  also  holds  true  although  the  percentage  of  lot 
area  which  can  be  covered  economically  may  be  higher.  This  result  is 
due  to  Mr.  Thomas's  plan  which  not  only  gives  his  tenants  more  light,  air, 
and  recreation  space,  but  obtains  the  same  rentable  area  with  less  gross 
cubage. 

The  bearing  of  these  facts  upon  the  zoning  of  New  York  City  is  obvi- 
ous. Apparently  it  will  be  possible  not  too  far  from  the  center  of  the 
city,  in  all  the  boroughs  except  perhaps  Manhattan,  to  convert  con 
able  portions  of  many  of  the  seventy  per  cent  zone?  into  zones  where 
perhaps  fifty  per  cent  is  the  maximum  percentage  of  the  lot  that  may  be 
covered — possible  because  it  can  be  done  not.  only  with  great  gain  to  the 
public  but  without  injustice  to  the  land  owner. 

The  possible  effect  of  Mr.  Thomas's  work  on  land  sub-division  is  also 
interesting.  The  New  York  City  tenement  house  law  made  it  practically 
impossible  any  longer  to  build  apartments  on  the  lot  twenty-five  feet  wide; 
Mr.  Thomas  may  be  able  to  convince  the  builder  that  the  unit,  in  tene- 
ment house  neighborhoods,  should  be  the  block  or  a  considerable  fraction 
of  it,  and  in  its  turn  the  wider  single  lot  unit  in  these  neighborhoods  would 
go  out  of 

with  relation  to  Mr.  Thomas's  work,  Garden  Apartments  in  Cities, 
hn  Taylor  Boyd,  Jr..  Xew  York  1920,  reprinted  from  the  "Architec- 
tural Record";  Is  it  Advisable  to  Remodel  Slum  Tenements  by  An- 
drew I  Thomas,  with  comment  by  Robert  1'  Kohn.  reprinted  for  the 
National  Federation  of  Settlements  from  the  "Architectural  Record,' 
York.  November.  1920,  pages  417  to  426;  and  >•  York 

Resolution  and  its  Influence  upon  Design,  in   the  "Architectural   Record." 
&  pp    193-217.     All  these  articles  contain  plans  and  illustrations. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         277 

Original  Features  in  Later  Ordinances. — Not  all  the 
variations  in  later  ordinances  from  the  New  York  model  are 
corrections  of  more  or  less  obvious  shortcomings;  some  of 
them  are  new  ventures  in  the  field  of  zoning.  In  some  ordi- 
nances recently  passed  a  new  area  limitation,  varying  by  dis- 
tricts, which  restricts  the  number  of  families  that  may  be 
housed  on  an  acre  or  given  fraction  of  it  has  been  adopted.24 
The  avowed  purpose  of  this  limitation  is  to  decrease  conges- 
tion— an  altogether  worthy  one.  The  same  object  could  be 
attained  by  increasing  the  requirements  with  regard  to  open 
space.  It  cannot  be  regarded  as  settled  which  of  these 
methods  of  reaching  the  same  general  result  will  secure  the  best 
results. 

In  one  or  two  ordinances  residences  are  altogether  excluded 
from  the  heavy  manufacturing  districts,25  as  is  sometimes 
done  in  Germany.26  If  the  district  is  kept  small,  this  may  be 
altogether  advantageous ;  although  it  would  seem  to  involve  the 
creation  of  a  neighboring  district,  devoted  to  housing,  which 
could  be  made  industrial  later,  if  expansion  of  the  original  in- 
dustrial district  became  necessary.  If,  however,  the  industrial 
district  is  large  enough  to  allow  expansion,  it  would  be  a  hard- 
ship and  an  economic  waste  to  keep  the  owners  of  land  from 
using  it  (until  needed  for  manufacturing)  for  the  only  pur- 
poses for  which  it  could  be  utilized. 

On  the  Pacific  Coast  the  tendency  of  zoners  is  to  create  a 
greater  number  of  use  districts  than  is  ever  found  in  the  East. 
Most  interesting  there  are  the  districts  for  public  and  semi- 
public  buildings,  often  limited  in  area  to  the  lot  a  particular 
building  occupies.  In  other  systems,  in  so  far  as  such  build- 

24  See,  for  instance,  sees.  26.63  and  26.64  of  the  Milwaukee  ordinance, 
given  in  full  on  p.  323  of  this  work.  Recent  statutes  in  some  cases  (Laws, 
Mich.  1921,  No.  207,  sec.  3;  Mo.,  1921,  p.  481,  sec.  3,  approved  April  i) 
expressly  authorize  localities  to  include  such  a  provision  in  their  zoning 
ordinances.  Milwaukee,  however,  and  other  cities  in  states  in  which  there 
is  no  such  express  authorization,  have  enacted  such  a  provision  in  their 
zoning  ordinances,  and  would  seem  to  be  justified  in  doing  so  under  the 
power,  which  their  state  laws  do  give  them,  to  pass  area  zoning  regulations. 

33  See,  for  instance,  the  Alameda  ordinance,  art.  i,  sec.  10,  given  in 
full  on  p.  341  of  this  work;  or  sec.  5  of  the  Newark,  New  Jersey  ordi- 
nance. 

*  See  p.  214. 


278  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ings  are  zoned,  they  are  merely  assigned  to  some  district  with- 
out being  definitely  placed,  or  are  located  by  special  license. 

A  recent  ordinance  for  a  small  municipality  which  is  prac- 
tically a  residential  suburb  of  a  neighboring  metropolis,27 
excludes  heavy  industry  entirely  from  the  municipality.  If 
the  suburb  should  be  zoned  in  this  way  in  a  zone  plan  for  the 
entire  metropolitan  area,  it  is  difficult  to  see  why  it  should  not 
be  so  restricted  in  a  zone  plan  for  the  suburb  alone.  Evi- 
dently in  many  respects  zoning  theory  in  this  country  is  still 
in  process  of  evolution.28 

"  White  Plains,  N.  Y.  Another  method  of  accomplishing  the  same 
result  is  to  establish,  as  the  sole  heavy  industry  district,  areas  already 
fully  occupied  and  therefore  incapable  of  receiving  other  industrial  es- 
tablishments. 

"  In  1916  the  City  Club  of  New  York  advocated  the  creation  of  a 
fourth  or  semi-residential  use  class  in  New  York  City,  to  consist  of  busi- 
ness on  the  ground  floor  and  residences  above ;  see  Report  of  Commission 
on  Building  Districts  and  Restrictions,  New  York  City,  1916,  pp.  93,  206. 
209.  This  development  is  common  in  big  cities,  the  buildings  sometimes 
being  very  expensive  apartments,  but  more  often  moderate  and  low  priced 
tenements.  In  territory  classified  as  business  districts,  residence  is  af- 
forded little  protection,  and  yet  the  great  mass  of  tenement  dwellers  must 
live  in  them.  There  is  no  reason  to  question  the  legality  of  zoning  along 
horizontal  any  more  than  along  vertical  lines,  if  for  the  public  interest. 
Such  a  district  has  been  provided  for  in  the  Elizabeth,  New  Jersey, 
zoning  ordinance,  adopted  in  1922. 

Port  Zoning. — The  Port  Committee  of  the  City  Club  of  New  York, 
in  a  report  dated  July  2,  1918,  made  the  following  suggestion  with  regard 
to  the  zoning  of  the  port  of  New  York : 

THE  COORDINATION  OF  THE  PLAN  OK  THE   PORT  WITH  THE  GENERAL  CITY  PLAN 
BY  THE   DEVELOPMENT  OF  A   SYSTEM    OF   ZONING. 

The  water's  edge  should  be  zoned  with  the  same  basic  principles  as 
governed  the  adoption  of  the  zone  system  for  the  city's  uplands.  It  is 
quite  as  important  that  similar  industries  using  the  same  type  of  factories, 
serving  a  similar  clientele,  and  delivering  goods  to  the  same  warehouses 
and  factories  be  located  together  as  it  is  that  residences,  industrial  and 
business  buildings  be  grouped. 

The  economical  development  of  the  Port  requires  the  coordination  of 
the  uplands  with  the  nearby  piers.  There  can  be  no  permanency  to  the 
plan  of  the  Port  until  a  complete  system  of  zoning  has  been  developed. 

Zoning  of  the  Port  of  New  York  should 

1.  Prevent    useless    hauling   and    handling   of    freight    by    developing 
union  classification  and  transfer  yards  outside  of  the  Island  of  Manhat- 
tan. 

2.  Relate  docks  to  receiving  nnd  classification  yards  so  that  so  far  as 
possible  steamers  may  be  loaded  directly  with  a  minimum  of  lightering  of 
cargo. 

3.  Provide    for   the   development   of   warehouses   in   connection   with 
the  classification  yards  and  piers  for  the  temporary  holding  and  classifi- 
cation of  goods  in  transit. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         279 

Discretionary  Powers. — There  is  a  tendency  at  present 
to  make  the  location,  extension  and  change  of  structures  of 
many  sorts  and  the  uses  in  them  dependent  upon  the  consent  of 
the  officials  administering  the  ordinance.  It  has  always  been 
regarded  as  inexpedient  in  this  country  to  give  discretionary 
powers  to  those  in  authority  when  it  is  possible  by  statute  or 
ordinance,  or  rules  under  them,  to  lay  down  general  principles 
governing  the  matter ;  and  it  should  not  be  forgotten  that,  un- 
less a  structure  or  a  use  is  objectionable  or  may  be  so  if  not 
regulated,  limitations  of  this  sort  with  relation  to  it  may  be 
illegal.29 

Establishing  Setbacks  by  Zoning. — In  many  zoning  ordi- 
nances there  are  provisions  for  the  establishment  of  front,  side 
and  rear  setbacks,  varying  in  the  different  districts.  There 
are  many  decisions  with  regard  to  setbacks,  employed  before 
the  days  of  zoning  in  this  country,  holding  that  a  setback  can- 
not be  imposed  under  the  police  power  and  without  compensa- 
tion.30 These  setbacks  were,  it  is  submitted,  radically  different 
from  the  setbacks  now  contemplated.  The  pre-zoning  setback 
of  these  decisions  requires  the  land  owner  to  leave  a  given  part 
of  his  land  open;  the  zoning  setback  in  effect  merely  prescribes 
the  location  of  a  part  of  the  space  which  must  be  left  open  irre- 
spective of  the  setback.  The  pre-zoning  setback,  affecting  as 
it  does  a  strip  of  land  of  the  same  width  irrespective  of  the 
size  and  shape  of  the  lot,  is  a  burden  which  bears  unequally 
upon  the  owners  of  lots  of  different  sizes  and  shapes ;  the  zon- 

4.  Provide  facilities  for  store  door  delivery  wherever  possible. 

5.  Relate  the  wholesale  food  markets  to  transportation  systems  and 
with  each  other. 

6.  Develop  types  of  piers  adopted  for  various  classes  of  business. 

7.  Develop  grain  and   other  bulk  cargo   terminals  with   modern  ma- 
chinery. 

8.  Preserve  parts  of  the  Port  near  dwellings  and  not  needed  for  com- 
mercial uses  for  park  purposes. 

29  McQuillin,  Municipal  Corporations;  sec.  728,  and  same  section  in  sup- 
plement issued  in  1921 ;  see  also  Ingham  v.  Brooks  et  al.,  95  Conn.  317,  and 
reference  to  same  in  Windsor  v.  Whitney  et  al.,  95  Conn.,  357   (1920)  ; 
Smith  v.   Hosford,   106  Kans.,  363    (1920);  Village  of   South  Orange  V. 
Heller,  92  N.  J.  Eq.  Rep.  505  (1921).    With  regard  to  the  tendency,  equally 
dangerous,  of  making  the  application  of  zoning  regulations  dependent  alto- 
gether upon  the  consent  of  property  owners,  see  above,  p.  266. 

30  St.  Louis  v.  Hill,  116  Mo.  527  (1893)  ;  Fruth  v.  Board  of  Affairs,  75 
W.  Va.  456  (1915). 


28o  THE  LAW  OF  CITY  PLANNING  AND  ZOXIXG 

ing  setback,  since  it  does  not  increase  the  required  percentage 
of  open  space  on  the  lot,  if  a  burden,  is  equal  for  all;  or  if 
unequal  does  not  require  more  than  the  minimum  open  space 
necessary  for  health.  The  pre-zoning  setback  is  an  isolated 
provision ;  the  zoning  setback,  especially  if  a  part  of  a  compre- 
hensive scheme,  is  an  element  of  a  plan  for  the  general  advan- 
tage. It  seems  reasonable  to  suppose  that,  if  zoning  is  valid 
at  all,  such  setbacks  imposed  under  the  police  power  as  a  part 
of  a  zoning  system  will  be  upheld  by  the  courts.31 

Zoning  under  Police  Power. — It  is  a  practical  necessity 
that  zoning  be  done  under  the  police  power  of  the  state,  without 
compensation.  In  a  few  cases,  statutes  have  been  passed  au- 
thorizing zoning  by  eminent  domain,  with  damages  to  those 
claiming  to  be  injured,  to  be  assessed  upon  those  benefited.32 
Under  these  statutes  little  or  no  zoning  has  been  done;  all 
the  zoning  regulations  having  employed  the  police  power. 
The  reason  for  this  is  apparent.  Zoning  regulations  for  any 
given  community  cover  a  broad  expanse  of  territory  and  affect 
a  vast  number  of  interests.  Under  eminent  domain  proper 
notice  must  be  served  in  due  form  on  each  of  the  parties  in 
interest,  and  each  must  be  given  the  usual  opportunity  of  pre- 
senting his  case  for  damages.  In  spite  of  the  fact  that,  as  a 
rule,  there  are  no  damages,  or  that,  if  there  are,  they  may  be 
collected  from  other  property  owners  by  other  proceedings  in 
due  legal  form,  there  remain  the  delays  always  incident  to  such 
proceedings,  which  in  this  case  would  be  numerous  and  ex- 
pensive; and  the  claims  for  damages,  which,  whether  justifi- 
able or  not,  must  be  disposed  of  at  the  same  cost  of  time  and 
money.  Moreover,  the  same  right  to  claim  damages  would 
accrue  to  the  landowner  whenever  there  was  a  change  in  the 
regulations  or  the  districts  created  under  them.  This  would 
render  modifications  in  the  system,  needed  to  adapt  it  to  devel- 
opment and  growth  in  the  community,  practically  impossible, 

*  For  an  example  of  such  setbacks,  see  sees.  26.62,  26.63  and  26  64  of 
the  Milwaukee  ordinance,  given  in  full  on  p.  323  of  this  work ;  also  Cleve- 
land, Ohio,  Ordinance  No.  52247-AB  (passed  Dec.  6,  1920),  especially 
interesting  because  of  the  provisions  for  a  board  of  appeals  to  vary  its 
terms. 

"See  Tables  of  Statutes, 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         281 

and  thus  stereotype  any  zoning  that  the  community  succeeded 
in  obtaining,  making  it  a  very  doubtful  blessing.  Practically, 
therefore,  zoning  must  be  done  by  the  simpler  methods  possible 
under  the  police  power,  in  which  every  owner  can  and  should 
be  given  an  opportunity  to  be  heard,  without  the  expenses, 
formalities  or  delays  of  legal  proceedings.33 

Power  of  Local  Governments  to  Zone. — A  local  govern- 
ment, in  order  to  pass  valid  zoning  ordinances,  must  possess 
the  police  power  of  the  state  in  sufficient  measure  for  the  pur- 
pose. Local  governments  in  this  country  have  only  such 
powers  as  the  state  has  given  them.  In  some  states  the  con- 
stitution or  statutes  grant  more  or  less  generously  to  local  com- 
munities the  power  to  enact  ordinances  for  their  general  wel- 
fare, thus  endowing  them  with  the  police  power  for  local  uses. 
This  general  grant  may  be  sufficient  to  permit  the  locality  in 
question  to  zone;  and  certainly  is  so  if  the  community  has  the 
full  police  power  in  local  matters.  It  is,  however,  becoming 
more  and  more  the  custom  to  pass  laws  explicitly  conferring 
the  power  to  zone ;  and  it  should  not  be  forgotten  that  this  fact 
is  rapidly  raising  a  strong  presumption  in  law  that  a  commu- 
nity cannot  zone  without  such  express  statutory  authority. 

Constitutionality  of  Zoning. — Building  regulations  under 
the  police  power  of  necessity  limit  the  land  owner  more  or  less 
in  the  use  of  his  land ;  and  for  these  limitations  no  compensa- 
tion is  provided.  The  validity  of  such  regulations,  whether 
they  are  the  same  for  the  entire  city  or  vary  by  districts,  is 
dependent  upon  the  question  whether  they  are  constitutional. 

The  police  power  may  be  used  for  the  promotion  of  the 
public  health,  safety,  morals  and  order,  and  for  the  general 
welfare.  Health,  safety,  morals,  and  order  are  words  of 
definite  meaning  and  comparatively  limited  content,  and  their 

33  The  first  Illinois  zoning  law  (approved  June  28,  1919)  unlike  any 
other  making  use  of  the  police  power,  made  elaborate  provision  for  per- 
sonal notice  to  each  property  owner  affected,  much  as,  of  necessity,  is 
done  under  eminent  domain.  For  this  reason  the  statute  was  regarded  as 
unworkable  by  many,  and  a  new  statute  (1921,  p.  180;  approved  June  28) 
has  now  been  passed.  No  zoning  was  ever  done  under  the  statute  of  1919. 

New  York  has  just  passed  a  statute  containing  a  similar  requirement 
(1922,  ch.  322)  for  the  establishment  of  building  lines  and  the  zoning  of 
those  parts  of  towns  in  Westchester  County,  outside  incorporated  villages. 


2&z  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

promotion  is  vital  to  the  state.  General  welfare  is  a  looser 
expression  and  measures  to  preserve  or  increase  it  are  more 
carefully  scrutinized  by  the  courts. 

For  many  years  cities  have  passed  regulations  of  the  height, 
area  and  use  of  buildings  which  are  the  same  throughout  the 
city;  and  the  courts  have  accepted  proper  regulations  of  this 
sort  as  valid.  It  is  only  when  these  regulations  vary  in  differ- 
ent parts  of  the  city  that  their  legality  is  still  in  any  doubt. 

Reasonableness. — Evidently  a  zoning  regulation,  to  be 
authorized  under  the  police  power,  like  any  measure  claimed  to 
be  an  exercise  of  any  power,  must  first  tend  in  a  sufficient  de- 
gree to  accomplish  a  purpose  justifiable  under  that  power,  and 
secondly  be  free  from  excess,  unreasonableness  or  similar  ele- 
ment. Thus  a  given  height  regulation,  to  be  upheld  as  a  police 
regulation  by  the  courts,  must  materially  promote  the  public 
health,  safety,  order  or  general  welfare  by  conserving  light  or 
air,  or  preventing  congestion,  etc.,  and  must  not  be  so  drastic 
as  to  lower  land  values  unduly  or  be  otherwise  unreasonable. 
Zoning  regulations,  however,  are  challenged  for  the  additional 
reason,  not  applicable  to  the  others,  that  they  do  not  afford  to 
all  the  equal  protection  of  the  laws  guaranteed  by  our  consti- 
tutions. 

Classification. — It  is  well  settled  in  our  law  that  the  pro- 
vision for  equal  protection  of  the  laws  does  not  prevent  reason- 
able classification.  If  all  persons  and  things  were,  in  nature 
and  situation,  absolutely  alike,  equality  of  treatment  would  be 
secured  only  by  identical  laws  for  all.  Evidently,  however,  the 
differences  in  nature  and  situation,  which  are  so  general,  permit 
and  even  require  differences  in  the  law  in  obtaining  such 
equality.  Uniformity  of  law  under  such  circumstances  would 
be  like  furnishing  all  men,  fat  and  thin,  tall  and  short,  with 
clothing  of  the  same  size,  when  equal  treatment  would  demand 
such  variations  as  would  give  each  a  suit  that  would  fit  him ;  or 
like  offering  rich  and  poor  clothing  of  the  same  material  ami 
price,  when  equality  requires  such  differences  as  will  give  each 
the  clothing  he  can  afford. 

In  accordance  with  this  principle,  the  courts  have  sus- 
tained laws  for  tenement  houses  subjecting  these  structures,  in 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         283 

which  the  danger  of  disease  and  fire  is  greater,  to  more 
stringent  limitations  than  one  and  two  family  houses;  and 
height  regulations  varying  with  the  width  of  the  street  on 
which  the  buildings  are  to  be  erected,  thereby  tending  to  secure 
in  each  an  equal  supply  of  light  and  air;  and  fire  limits  in 
which  buildings  of  fire-resisting  material  must  be  constructed  at 
greater  expense  than  in  the  other  parts  of  the  city  where  the 
fire  risk  is  less. 

Although  not  usually  recognized  as  such,  regulations  estab- 
lishing fire  limits  and  restricting  the  height  of  buildings  in 
accordance  with  the  width  of  the  streets  on  which  they  are 
to  stand,  which  have  universally  received  the  support  of  the 
courts,  are  really  zoning  measures.  The  same  considerations 
demand  the  same  support  for  the  more  fully  developed  zoning 
which  the  city  planners  of  today  are  advocating.  Thus  the 
central  business  parts  of  the  city,  to  facilitate  the  quick  trans- 
fers of  business,  require  higher  buildings,  covering  more  of 
the  lot,  than  the  outlying  sections ;  and  conversely  the  outlying 
residential  districts  need  lower  buildings,  with  more  space 
around  them  for  the  comfort  and  health  of  adults,  and  espe- 
cially for  growing  children.  Modern  science  has  established 
the  fact  that  human  beings  need  abundance  of  sun,  light  and 
air,  and  freedom  from  nerve-racking  noise,  to  a  degree  that  it  is 
impossible  to  obtain  in  the  manufacturing  and  business  parts 
of  modern  cities ;  and  experience,  especially  perhaps  that  of  the 
English  garden  cities,  tends  strongly  to  confirm  these  scientific 
facts;  which,  indeed,  are  in  accordance  with  common  observa- 
tion and  common  sense.  If,  therefore,  these  conditions  cannot 
be  obtained  in  the  business  and  industrial  parts  of  cities,  it  is 
all  the  more  necessary  that  they  be  furnished  in  greater  abun- 
dance and  completeness  in  other  sections.  Moreover  the  types 
of  buildings  prevailing  in  the  two  sections  and  the  land  prices 
in  each  of  them,  make  the  varying  regulations  more  equal  in 
burden  and  effect  than  identical  limitations  would  be. 

In  the  same  way  use  regulations  varied  to  suit  the  various 
uses  prevailing  and  suitable  in  the  various  parts  of  the  city, 
properly  conceived  and  applied,  are  measures  of  equality  and 
not  of  discrimination.  Thus  if  it  were  required  that  both  land 


284  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

accessible  to  the  railroads  and  land  on  the  remoter  hills  of  a 
city  should  be  used  for  the  same  purpose,  whether  for  busi- 
ness or  for  residence,  there  would  be  a  glaring  inequality  of 
treatment.  It  may  be  claimed  in  zoning  that  any  given  regula- 
tion is  inappropriate  or  unwarrantably  severe ;  but,  like  all  leg- 
islation, it  must  be  devised  with  knowledge  and  skill. 

Decisions  on  Zoning. — Until  recently  the  courts  in  their 
decisions  with  regard  to  zoning  34  have  passed  upon  specific 

14  DECISIONS  ON  ZONING 

The  judicial  decisions  in  favor  of  or  against  the  validity  of  ordinances 
in  this  country  creating  various  classes  of  zoning  districts  are  given  below. 
Among  them  are  (i)  cases  in  which  the  exclusion  of  a  use  from  a  given 
district  is  more  or  less  dependent  upon  the  consent  of  the  property  owners 
of  that  district.  These  cases  are  marked  with  a  star  (*).  The  validity  of 
consent  ordinances  as  such  is  considered  on  p.  266;  (2)  billboard  cases, 
marked  with  a  dagger  (t);  garage  cases,  marked  with  a  double  dagger 
(t)  ;  cases  with  regard  to  zoning  under  statutes  relying  upon  the  power 
of  eminent  domain,  with  regard  to  which  that  fact  is  stated,  in  all  the 
other  cases  the  zoning  being  under  the  police  power. 

SYSTEMATIC  AND  COMPLETE  ZONING 

California. — See  Brown  v.  City  of  Los  Angeles  (1920),  183  CaJ.  783, 
192  Pac.  716. 

District  of  Columbia. — See  Schwartz  v.  Brownlow  (1921),  50  App. 
D.  C.  279,  270  Fed.  1019. 

Massachusetts. — Opinion  of  Justices  (1920),  234  Mass.  597,  127  N.  E. 
525- 

Missouri. — See  City  of  St.  Louis  v.  Evraiff  and  Friedman,  Mo.  Sup.  Ct, 
Oct.  Term,  1921. 

Nfw  Jersey. — See  Cliffside  Park  Realty  Co.  v.  Borough  of  Qiffside 
Park  (1921),  114  Atl.  797. 

New  York.— Lincoln  Trust  Co.  v.  Williams  Bldg.  Corp.  (1920),  183 
App.  Div.  225,  229  N.  Y.  313. 

Ohio. — People  ex  rel.  Morris  v.  Osborn  (1920),  22  Ohio  N.  P.  (N.  S.) 
549- 

HEIGHT  DISTRICT 

Maryland. — See  Cochran  v.  Preston   (1908),  108  Md.  220. 
Massachusetts. — Welch  v.  Swasev  (1908),  193  Mass.  364,  214  U.  S.  91. 
New  Jersey. — See    Romar    Realty    Co.    v.    Board    of    Commissioners 
(1921).  114  Atl.  248. 

ONE,   AND  ONE  AND  TWO-FAMILY   HOUSE   DISTRICTS 

Colorado.— Sec  *Willison  v.  Cooke  (1013).  54  Col.  320,  130  Pac.  828. 

Kentucky. — See  McMurtry  v.  Phillips  Investment  Co.  (1898)  103  Ky. 
308,  45  S  W.  96;  Struck  v.  Kohler  (1920).  187  Ky.  517.  219  S.  W.  435- 

Maryland.— Contra,  Byrne  v.  Md.  Realty  Co.  (1916),  129  Md.  202.  98 
Atl.  547. 

Massachusetts. — Opinion  of  Justices  (1920).  234  Mass.  597,  127  N.  E. 

525. 

Minnesota. — State  ex  rel.  Twin  City  Bldg.  and  Investment  Co.  v. 
Houghton  (1919),  144  Minn,  i,  174  N.  W.  885,  176  N.  W.  159  (eminent 


domain)  ;  contra,  State  ex  rel.  Roerig  v.  City  of  Minneapolis  (1917),  136 
Minn.  479,  162  N.  W.  477. 

Nebraska. — See,  State  ex  rel.  Westminster  Presbyterian  Church  of 
Omaha  v.  Edgecomb,  Chief  Eng.  Bldg.  Dep.,  City  of  Omaha,  pending  in 
State  Supreme  Court. 

New  Jersey. — See  Blakeslee  v.  Jersey  City  (1921),  95  N.  J.  Law  Rep. 
284,  Handy  v.  Village  of  South  Orange  (Feb.  21,  1922),  —  Atl.  — . 

New  York.— See  Reformed  P.  D.  Church  v.  M.  A.  Bldg.  Co.  (1915), 
214  N.  Y.  268. 

Ohio. — State  ex  rel.  Morris  v.  Osborn  (1920),  22  Ohio  N.  P.  (N.  S.) 

549- 

Oregon. — See  State  v.  Plummer  (1920),  97  Ore.  518,  189  Pac.  405,  191 
Pac.  883. 

GENERAL    RESIDENCE   DISTRICT,    BUSINESS   EXCLUDED 

Colorado. — Contra,  Willison  v.  Cooke  (1913),  54  Col.  320,  130  Pac.  828. 

Illinois. — Contra,  *  People  ex  rel.  Friend  v.  City  of  Chicago  (1913),  261 
111.  16,  103  N.  E.  609. 

Louisiana. — Contra,  Calvo  v.  City  of  New  Orleans  (1915),  136  La.  480, 
67  So.  338;  State  ex  rel.  Blaise  v.  New  Orleans  (1917),  142  La.  73,  76  So. 
244. 

Maryland. — Contra,  Stubbs  v.  Scott  (1915),  127  Md.  86,  95  Atl.  1060 
(automobile  salesroom). 

Minnesota. — Contra,  State  ex  rel.  Lachtman  v.  Houghton  (1916),  but 
see  State  ex.  rel.  Twin  City  Bldg.  and  Investment  Co.  v.  Houghton 
(1919),  144  Minn.  I,  174  N.  W.  885,  176  N.  W.  159;  (eminent  domain)  see 
Roerig  v.  Houghton  (1919),  144  Minn.  231,  175  N.  W.  542. 

Missouri. — Contra,  St.  Louis  v.  Dorr   (1898),   145   Mo.  466. 

New  York. — See  Whitridge  v.  Calestock  (1917),  100  Misc.  367,  165  N. 
Y.  Supp.  640,  179  A.  D.  884. 

Texas. — Spann  v.  City  of  Dallas  (1916),  189  S.  W.  999. 

GENERAL    RESIDENCE    DISTRICT,    NUISANCES,    MANUFACTURING,    ETC.,    EXCLUDED 

Arkansas. — Reinman  v.  Little  Rock  (1913,  1915)  107  Ark.  174,  237  U.  S. 
171  (stable)  ;  Pierce  Oil  Co.  v.  Hope  (1917,  1918)  127  Ark.  38,  248  U.  S. 
498. 

California. — Ex  Parte  Quong  Wo  (1911)  161  Cal.  220,  118  Pac.  714 
(laundry);  Barbier  v.  Connolly  (1884)  113  U.  S.  27*  (laundry).  In  re 
Montgomery  (1912)  163  Cal.  457,  125  Pac.  1070  (lumber  yard)  ;  Ex  Parte 
Hadacheck  (1913)  165  Cal.  416,  132  Pac.  584  (brickyard)  ;  Hadacheck  v. 
Sebastian  (1915)  239  U.  S.  394  (brickyard)  ;  Curtis  v.  City  of  Los  An- 
geles (1916)  172  Cal.  230,  156  Pac.  462  (stable);  Boyd  v.  City  of  Sierra 
Madre  (1919)  41  Cal.  App.  520,  183  Pac.  230  (stable);  Brown  y.  City  of 
Los  Angeles  (1920)  192  Pac.  716  (undertaker)  ;  Sam  Kee  v.  Wild  (1919) 
183  Pac.  164  (laundry). 

Delaware. — $*  Myers  v.  Fortunate  (1920) — Del.  no  Atl.  847;  Contra. 
— t*Dangel  v.  Williams  (1916)  n  Del.  Ch.  213. 

Idaho. — Bacon  v.  Walker  (1907)  204  U.  S.  311   (sheep). 

Illinois. — City  of  Chicago  v.  Stratton  (1896)  162  111.  494,  44  N.  E.  853 
(stable)  ;  Standard  Oil  Co.  v.  Danville  (1902),  119  111.  50,  105  N.  E.  15. 
*  Smolensky  v.  City  of  Chicago  (1917)  282  111.  131  (junk  shop)  ;  *$  People 
ex  rel.  Buschling  v.  Ericsson  (1914)  263  111.  368,  105  N.  E.  315.  *$  People 
ex  rel.  Keller  v.  Village  of  Oak  Park  (1914)  266  111.  365,  107  N.  E.  636; 
*t  Cusack  v.  City  of  Chicago  (1914-17)  267  111.  344,  108  N.  E.  340,  242 
U.  S.  526;  Contra. — *People  ex  rel.  Goldberg  v.  Busse  (1909)  240  111.  338, 
88  N.  E.  831  (junk  shop). 

Indiana. — Shea  v.  City  of  Muncie  (1897)  148  Ind.  14,  46  N.  E.  138 
(saloon). 


286  THE  LAW  OF  CITY  PLANNING  AND  ZONING/^ 

Iowa. — Shiras  v.  Olinger  (1879)  5°  Iowa  571  (stable)  ;  N-;  W.  Laundry 
Co.  v.  Des  Moines  (1916),  239  U.  S.  486  (dense  smoke)  f  *J  City  of  Des 
Moines  v.  Manhattan  Oil  Co.  (1921),  184  N.  \Y.  Sj.v 

Minnesota. — Meyers  v.  Houghton  (1917)  137  Minn.  481.  163  N.  W. 
754:  Meagher  v.  Kessler  (1920),  147  Minn.  182  (undertaker);  State  ex 
rel.  Banner  v.  Houghton  (1919),  142  Minn.  28,  170  N.  W.  853;  City  of  St. 
Paul  y.  Kessler  (1920)  146  Minn.  124,  178  N.  W.  171  (undertaker). 

Missouri. — *  City  of  St.  Louis  v.  Russell   (1893)   116  Mo.  248  (stable). 

New  Jersey. — t  Village  of  South  Orange  v.  Haller  (1921) — N.  J. — , 
113  Atl.  697;  see  t  Blakeslee  v.  Mayor  and  Aldermen  of  Jersey  City  (1921) 
95  N.  J.  Law  284,  112  Atl.  593. 

New  For*.— Matter  of  Russell  (1916)   158  N.  Y.  Supp.  162. 

Washington. — City  of  Spokane  v.  Camp  (1908)  50  Wash.  554,  97  Pac. 
770  (stable). 

BUSINESS    DISTRICT 

Arkansas. — t  Reinman  v.  Little  Rock  (1913-15)  107  Ark.  174,  237  U.  S. 
171  (stable). 

California. — Barbier  v.  Connolly  (1884)   113  U.  S.  27  (laundry). 

Illinois. — Contra,  People  ex  rel.  Goldberg  v.  Busse  (1909)  240  111.  338, 
88  N.  E.  831  (junk  shop). 

Missouri. — St.  Louis  v.  Russell  (1893)  116  Mo.  248,  22  S.  W.  47C 
(stable). 

See  also  Town  of  Cuba  v.  Mississippi  Oil  Co.,  150  Ala.  259,  43  So.  706 
(1007)  ;  Coon  v.  Board  of  Public  Works,  7  Cal.  App.  760  (1908)  ;  Varney 
&  Green  v.  Williams,  155  Cal.  318  (1909)  ;  Nahser  v.  City  of  Chicago,  271 
111.  288  (1916)  ;  City  of  Hammond  v.  Calumet  C.  &  S.  Co.,  262  Fed.  938 
(1920;  Ind.)  ;  Shiras  v.  Olinger,  50  Iowa  571  (1879);  Williams  v.  Wolf- 
gang, 151  Iowa  548  (1911)  ;  Osborne  v.  Grauel,  136  Md.  88  (1920)  ;  Hays 
v.  City  of  Poplar  Bluff,  263  Mo.  516  (1914);  Watertown  v.  Mayo,  109 
Mass.  315  (1872);  Quintini  v.  Board  of  Aldermen,  64  Miss.  483  (1886); 
People  ex  rel.  Corn  Hill  Realty  Co.,  209  N.  Y.  434;  103  N.  E.  735  (1913)  ; 
Hall  v.  House  of  St.  Giles  the  Cripple,  154  N.  Y.  Supp.  96  (1915)  ;  City 
of  Rochester  v.  West,  164  N.  Y.  510  (1900)  :  West  Side  Mort.  Co.  v.  Leo, 
174  N.  Y.  Supp.  451  (1919)  ;  Walcher  v.  First  Presbyterian  Church, 
Okla.  9,  184  Pac.  106  (1909)  ;  State  ex  rel.  Omaha  Gas  Co.  v.  Within  11,  78 
Neb.  33  (1907);  State  ex  rel.  Krittenbunk  v.  Withncll,  91  Neb.  102;  135 
N.  W.  376  (1012);  State  v.  Whitlock,  149  N.  C.  542  (1908);  Coyne  v. 
Prichard  (Penn.)  116  Atl.  315  <  i< »-'-•)  :  State  of  Tennessee  v.  Newton,  3 
Tenn.  Civ.  App.  93  (1912)  ;  City  of  Olympia  v.  Mann,  i  Wash.  389  (1890)  : 
Fruth  v.  I',(,:ud  <.f  Affairs  of  Charlestown,  75  West  Va.  456;  84  S.  E.  105 
(1915)  ;  State  ex  rel.  Nehrbass  v.  Harper,  162  Wise.  589  (1916). 

Cases  tii'/ A  relation  to  procedure: 

District  of  Columbia. — J  Weeks  v.  Heurich  (1913),  40  App.  cas. 
D.  C.  46. 

New  Jersey. — ClifYside  Park  Realty  Co.  v.  Borough  of  Cliffside  Park 
(1921),  114  Atl.  797. 

New  York.— Whitridge  v.  Park  (1917)   165  N.  Y.  Supp.  640;  179  App. 
Div.  884;  100  Misc.  367;  Anderson  v.  Steinwav  <  10171.  178  App.  Div.  507: 
221  N.  Y.  639;   Whiti-idtfe  v.  Calostock   (1017)    TOO  Misc.  307;   K. 
Supp.  640;   179  App.  Div.  8K  rel     I  U--1' -u!'<  imer  v.   !.<•'>   <i'>l8). 

186  App.  Div.  i.U-  ex  n-1    N    Y.  Centra!  H    K    v.  Leo  (1918).  105 

Misc.  372;  173  N.  Y.  Supp  -'17;  People  ex  rel.  Broadway  and  </>i!i  St. 
Realty  Co.  v  Miller.  .V.  )'.  Laiv  Journal.  Nov.  I,  IOM.  MOM  v  Kuben 
Stern,  .V.  )'.  /  <K>-  J.nirn^.  Dec  JO.  IO-M  ;  People  ex  rel.  Sheldon  v.  Bd  of 
App..  11?  Mi  \'.  Y.  Supp.  1145  (1922);  AIl>  'its 

Re;.!  \PP.  Div.   (N.  \.)  736;  169  N.  Y.  Supp. 


287 

zoning  provisions  and  not  on  zoning  as  a  whole.  Thus  the 
Massachusetts  courts,  sustained  by  the  Supreme  Court  of  the 
United  States,35  have  upheld  a  height  zoning  provision.  There 
seems  to  be  no  difference  in  principle  between  zoning  by  height 
and  zoning  by  area.  It  has  for  some  time  therefore  been  re- 
garded as  reasonably  certain  that  proper  bulk  zoning  is  con- 
stitutional. State  courts,  sustained  by  the  Supreme  Court  of 
the  United  States,  have  also  held  that  manufacturing  36  or  other 
enterprises  which  on  any  reasonable  ground  may  be  deemed 

1049;  People  ex  rel.  Beinert  v.  Miller  (1919),  100  Misc.  318,  188  App.  Div. 
113;  165  N.  Y.  Supp.  602;  People  ex  rel.  Sondern  v.  Walsh  (1919),  108 
Misc.  (N.  Y.)  193,  196;  People  ex  rel.  Wohl  v.  Leo  (1919),  109  Misc.  448, 
178  N.  Y.  Supp.  85;  $  People  ex  rel.  Small  v.  Leo  (1919),  178  N.  Y.  Supp. 
239;  People  ex  rel.  McAvoy  v.  Leo  (1919),  109  Misc.  255;  178  N.  Y.  Supp. 
513;  $  West  Side  Mortgage  Co.  v.  Leo  (1919),  174  N.  Y.  Supp.  451; 
|  People  ex  rel.  Facey  v.  Leo  (1921),  no  Misc.  516;  193  App.  Div.  9:0;  180 
N.  Y.  Supp.  553,  230  N.  Y.  602;  t  People  ex  rel.  Healy  v.  Leo  (1920),  185 
N.  Y.  Supp.  948;  $  People  ex  rel.  Cotton  v.  Leo  (1920),  no  Misc.  519,  180 
N.  Y.  Supp.  554.  People  ex  rel.  Helvetia  Realty  Co.  v.  Leo  (1921),  183  N.  Y. 
Supp.  37;  185  N.  Y.  Supp.  949;  People  ex  rel.  Ruth  v.  Leo  (1921),  N.  Y. 
Law  Journal,  March  29,  1921,  p.  2195 ;  188  N.  Y.  Supp.  945 ;  Guinness  v. 
Forchheimer,  N.  Y.  Law  Journal,  May  21,  1921,  190  N.  Y.  Supp.  929; 
People  ex  rel.  Sheldon  v.  Board  of  Appeals  (1921),  115  Misc.  449;  189 
N.  Y.  Supp.  772. 

Ordinances  Must  Be  Reasonable. — San  Diego  Tuberculosis  Hospital  v. 
City  of  East  San  Diego,  200  Pac.  393  (1921)  ;  State  ex  rel.  Westminister 
Presbyterian  Church  of  Omaha  v.  Edgecomb,  Chief  Eng.  Bldg.  Dept. 
City  of  Omaha,  pending  in  State  Supreme  Court ;  Handy  v.  Village  of 
South  Orange  (Feb.  21,  1922) — Atl. — ;  People  ex  rel.  Wineburgh  Adt.  Co. 
v.  Murphy,  195  N.  Y.  126  (1909)  ;  Bennett  v.  Vallier,  136  Wis.  193 
(1908).  Piecemeal  Zoning. — See  Brown  v.  City  of  Los  Angeles,  192  Pac. 
716  (1920).  Definition  of  Use. — People  ex  rel.  Wohl  v.  Leo,  109  Misc. 
448,  178  N.  Y.  Supp.  851  (1919).  With  regard  to  revocation  of  permit 
granted  before  passage  of  ordinance,  see  City  of  Des  Moines  v.  Man- 
hattan Oil  Co.,  184  N.  W.  823  (1921). 

Exclusion  cannot  be  on  ground  that  building  does  not  conform  to  char- 
acter of  buildings  in  neighborhood,  and  does  tend  to  depreciate  the  value 
of  surrounding  property.  Bostock  v.  Sams,  95  Md.  400  (1902). 

Police  power  may  be  used  to  promote  general  comfort,  convenience  and 
prosperity.  Lake  Shore,  M.  S.  and  S.  Ry.  Co.  v.  Ohio,  173  U.  S.  285 
(1898)  ;  C.  B.  &  Q.  Ry.  Co.  v.  Drainage  Com'rs  (111.),  200  U.  S.  561  at 
592  (1906). 

Zoning  by  race  or  color  is  invalid,  under  the  United  States  Constitution : 
Buchanan  v.  Warley,  165  Ky.  559;  Reversed  245  U.  S.  60  (191?)  ;  see  also 
Carey  v.  City  of  Atlanta,  143  Ga.  192  (1915)  ;  State  v.  Gurry,  121  Md.  534 
(1913);  State  v.  Darnell,  166  N.  Car.  300  (1914);  Hopkins  v.  City  of 
Richmond,  117  Va.  692  (1915). 

35  Welch  v.  Swasey,  193  Mass.  364,  affirmed,  214  U.  S.  91   (1909). 

"Ex  parte  Hadacheck.  165  Cal.  416  (1913),  Hadacheck  v.  Sebastian, 
239  U.  S.  394  (1915)  ;  Reinman  v.  Little  Rock,  107  Ark.  174  (1913),  237 
U.  S.  171  (1915). 


288  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

objectionable  in  a  residential  or  business  neighborhood,  even 
if  not  an  actual  nuisance,  may  be  excluded.  The  legality  of 
reasonable  use  zoning  as  a  protection  against  manufacturing 
may  therefore  be  regarded  as  established.  Until  recently  the 
decisions  in  state  courts  with  regard  to  regulations  excluding 
business  from  residential  neighborhoods  (the  Supreme  Court 
of  the  United  States  has  not  as  yet  had  occasion  to  consider  the 
question)  had  been  almost  uniformly  against  their  validity. 
The  reason  given  was  that  these  regulations  were  based  upon 
aesthetic  considerations.  Certainly,  as  a  general  statement  of 
the  case  for  such  zoning,  this  is  most  inadequate  and  therefore 
unfair.  The  intrusion  of  business  into  residential  districts 
often  interferes  with  comfort  and  convenience  in  these  districts, 
and  with  health  and  safety,  especially  of  children ;  as  is  shown 
by  a  drop  in  land  values.  As  an  isolated  provision,  a  measure 
barring  business  from  such  districts  might  well  be  considered 
as  a  taking  of  property  rights  from  one  land  owner  for  the 
advantage  of  others.  If,  however,  business  is  excluded  as  a 
part  of  a  complete  and  well-considered  plan,  which  includes 
all  the  land  in  the  city  in  its  various  provisions,  and  assigns  to 
business  its  proper  place,  for  its  own  good  as  well  as  the  ad- 
vantage of  others,  residential  land  is  benefited  certainly  with- 
out loss  to  business  property,  and,  as  a  rule,  to  its  gain.  None 
of  these  cases  were  with  regard  to  such  a  comprehensive  plan. 

Recent  Decisions  on  Zoning. — Late  judicial  opinions 
have  done  much  to  clarify  the  law  on  the  subject  of  zoning. 
They  consist  of  a  case  in  an  inferior  court  in  Ohio,  an  opinion 
of  the  Justices  of  the  Supreme  Court  of  Massachusetts,  and  a 
case  in  the  Court  of  Appeals  in  New  York.37 

The  East  Cleveland  Case. — In  July,  1919,  the  City  of 
East  Cleveland,  Ohio,  passed  a  zoning  ordinance  establishing 
a  one  and  two- family  residence  district  restricted  against  indus- 
try, business  and  tenements,  a  general  residence  district  re- 

**  State  of  Ohio  ex  rel.  Morris  v.  Oshorn,  City  Manager  of  East  Cleve- 
land, et  al.,  Common  Pleas  Court,  Cuyahoga  County,  decided  April  30, 
1920,  reported  in  22  Ohio  Nisi  Prius  Reports  (New  Series),  page  549; 
Opinion  of  Justices,  234  Mass.  597,  and  also  House  Documents  (1920) 
No.  1774;  Lincoln  Trust  Co.  v.  Williams  Building  Corp.,  229  N.  Y.  313 
(1920). 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         289 

stricted  against  business  and  industry,  a  business  district  and 
an  unrestricted  or  industrial  district.  An  owner  of  real  estate 
in  the  one  and  two-family  district  applied  for  a  permit  to  erect 
tenement  houses  upon  it;  and,  when  the  permit  was  refused, 
appealed  to  the  courts.  For  the  first  time,  judging  by  the 
opinions,  the  court  considered  the  propriety  of  the  exercise  of 
the  police  power  38  for  the  establishment  of  a  private  residence 
district  as  a  part  of  systematic  and  complete  zone  plan ;  and  in 
so  considering  it  held  that  the  police  power  could  be  employed 
for  the  purpose.  If  tenements  can  legally  be  kept  out  of  any 
given  district,  so  can  business,  as  well  as  industry;  and  it  fol- 
lows that  our  present  zoning  plans,  if  in  detail  carefully  and 
reasonably  conceived  and  executed,  will  be  sustained  by  the 
courts. 

The  Opinion  of  the  Massachusetts  Justices. — Alone 
among  the  states,  Massachusetts  has  authorized  the  passage  of 
zoning  laws  by  constitutional  amendment.39  Under  this 
amendment  a  statute  has  just  been  passed  40  which  permits  the 
establishment,  as  a  part  of  a  complete  zoning  regulation,  of 
districts  from  which  business  and  tenements  are  excluded.  It 
was  with  regard  to  the  validity  of  that  law  that  the  opinion  of 
the  judges  of  the  supreme  court  of  Massachusetts  already  men- 
tioned was  obtained.  It  seemed  reasonably  clear  after  reading 
the  Massachusetts  statute  that  it  was  in  accordance  with  the 
provisions  of  the  Massachusetts  constitutional  amendment.  In 
any  event  the  opinion  of  the  Massachusetts  Justices  that  it  was 
so  would  not  much  affect  the  fate  of  districts  from  which  the 
tenement  was  excluded,  and  systematic  zoning,  outside  of 
Massachusetts.  But  the  Massachusetts  Justices  decided  also 
that  the  statute  was  in  conformity  with  the  Constitution  of  the 
United  States,  in  force  in  every  state  in  our  Union.  This,  and 
the  added  fact  that  the  provisions  with  regard  to  the  taking  of 

88  The  exclusion  of  tenements  from  given  districts  under  the  power 
of  eminent  domain  has  been  sustained  by  the  courts ;  State  ex  rel.  Twin 
City  Bldg.  and  Investment  Co.  v.  Houghton,  144  Minn.  i. 

39  Constitution,  Amendments,  art.  60. 

40  Now  General  Laws,   1920,  ch.  40,  sees.  25-30.     The  existence  of  an 
earlier  statute  (now  1920  ch.  143,  sec.  3)   should  not  be  forgotten.     It  is 
in  some  ways  more  comprehensive  than  the  later  law. 


ago  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

property  rights  in  the  United  States  Constitution  are  similar  to 
those  in  the  unamencled  constitutions  of  the  other  states,  makes 
the  Massachusetts  opinion  a  weighty  authority  for  the  district 
from  which  the  tenement  is  excluded,  and  systematic  zoning, 
everywhere  in  this  country;  and  it  is  already  being  so  cited.41 
The  New  York  Decision. — In  New  York,  where  sys- 
tematic zoning  regulations  were  first  passed  in  this  country, 
there  has  been  litigation  with  regard  to  many  phases  of  such 
zoning,  but  until  lately  none  involving  its  constitutionality. 
Last  July,  however,  such  a  case  was  decided  by  New  York's 
highest  court.  In  that  case  42  the  Court  says : 

"The  [New  York  City  Zoning]  resolution  divided  the  real  estate 
[of  the  city]  into  three  districts,  'residence  district/  'business  dis- 
trict,' and  'unrestricted  district.'  The  land  which  the  defendant  con- 
tracted to  purchase  was  in  the  residence  district.  The  question  pre- 
sented is  whether  the  resolution  constituted  an  incumbrance  which 
would  relieve  the  purchaser  from  its  obligation  to  complete  the  pur- 
chase as  provided  in  the  contract. 

"In  a  great  metropolis  like  New  York,  in  which  the  public  health, 
welfare,  convenience  and  common  good  are  to  be  considered,  I  am  of 
the  opinion  that  the  resolution  was  not  an  incumbrance,  since  it  was 
a  proper  exercise  of  the  police  power.  The  exercise  of  such  power, 
within  constitutional  limitations,  depends  largely  upon  the  discretion 
and  good  judgment  of  the  municipal  authorities  with  which  the  courts 
are  reluctant  to  interfere.  .  .  ." 

"Since  this  opinion  was  written  an  opinion  of  the  justices  of  the 
Supreme  Judicial  Court  of  Massachusetts  .  .  .  has  been  published, 
which  sustains  the  conclusion  above  expressed." 

In  the  light  of  these  opinions,  proper  zoning  in  this  country 
would  now  seem  to  be  reasonably  secure  against  judicial  attack. 
It  must  not  be  forgotten,  however,  that  the  police  power  varies 
with  local  conditions  in  different  parts  of  this  country; 43  and 
that  it  is  not  impossible  that  there  are  details  or  phases  of 
zoning  which  will  be  held  valid  by  the  courts  in  some  states  but 
will  not  be  so  sustained  in  others. 


"  In  Lincoln  Trust  Co.  v.  Williams  Building  Corp.,  229  N.  Y.  313 
(1920). 

•Lincoln  Trust  Co.  v.  Williams  Building  Corp.,  229  N.  Y.  31?,  just 
cited. 

41  See  p.  20. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        291 

Pacific  Coast  Zoning. — Even  the  most  hopeful  advocate 
will  admit  that  there  are  many  questions  with  regard  to  zoning 
which  remain  unanswered.  For  this  reason,  until  the  law  has 
become  better  settled,  it  especially  behooves  zoners  and  city  offi- 
cials to  proceed  with  care.  On  the  Pacific  Coast,  zoning  ordi- 
nances create  from  eight  to  twelve  classes  of  district,  instead 
of  the  four  or  five  usually  to  be  found  in  other  parts  of  the 
country.44  There  is  no  reason  to  suppose,  and  certainly  none 
to  hope,  that  zoning  has  become  stereotyped  in  this  country; 
but  on  the  contrary  changes  are  to  be  expected  and  desired. 
The  Pacific  Coast  districts,  however,  seem  to  lack  those  broad 
lines  of  demarcation,  those  solid  reasons  for  existence  which 
alone  will  justify  them  before  our  courts  and,  in  the  long  run, 
with  the  community  as  a  whole.  Certainly  the  prudent  zoner 
in  the  East  and  Middle  West,  for  the  immediate  future  at  least, 
will  avoid  such  elaborate  classification.  Even  the  law  and  prac- 
tice with  regard  to  the  comparatively  conservative  one- family 
detached  house  district  is  still  in  a  most  unsettled  condition. 

Unsettled  Legal  Questions  in  Zoning. — The  courts  have 
given  some  support  to  the  hope  that  private  residence  districts 
may  legally  be  established.  Where  shall  the  line  be  drawn 
between  them  and  the  less  private  district?  The  cases  are  too 
few  for  us  to  obtain  from  them  definite  information  -on  the 
subject.  Certainly  the  line  must  be  based  upon  some  distinc- 
tion of  importance.  Under  some  zoning  ordinances  two  fam- 
ily districts  have  been  created;  and  the  tenement,  and  in  some 

44  The  zoning  statutes  of  California  (1917,  ch.  734,  p.  1419)  expressly 
provide  that : 

"Sec.  2.  The  council  may  by  ordinance  regulate,  restrict  and  segre- 
gate the  location  of  industries,  the  several  classes  of  business,  trades  or 
callings,  the  location  of  apartment  or  tenement  houses,  club  houses,  group 
residences,  two-family  dwellings,  single  family  dwellings  and  the  several 
classes  of  public  and  semi-public  buildings,  and  the  location  of  buildings 
or  property  designed  for  specified  uses,  and  may  divide,"  etc. 

The  Oregon  Zoning  Statute  (Revised  Laws  1920,  sec.  3874,  passed  in 
1919)  practically  identical  with  that  of  California  throughout,  is  the  same 
in  this  respect.  As  yet  there  are  no  decisions  with  regard  to  the  con- 
stitutionality of  either  of  these  laws.  With  regard  to  such  zoning,  see 
also  pp.  267,  272,  275,  277,  292. 

For  a  statement  of  the  Pacific  Coast  point  of  view  in  zoning  from 
the  pen  of  the  man  who  perhaps  has  done  more  of  it  than  anyone  else,  see 
"Zoning  in  Practice"  by  Charles  H.  Cheney,  in  the  National  Municipal 
Review  for  January,  1920. 


292  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

cases  the  three  decker,  barred.  If  this  line  is  drawn  on  the 
basis  of  congestion,  either  expressly,  or  indirectly  by  resort  to 
height  and  area  restriction,  it  is  easy  to  see  how  it  may  with 
some  confidence  be  regarded  as  legal.  As  a  pure  use  distinction, 
by  which  all  but  one  and  two- family  houses  are  barred  ex- 
pressly and  by  name,  it  is  harder  to  support.  Why  may  not 
three  families  living  independently,  without  common  halls,  be 
better  housed,  in  some  cases,  than  two  with  common  halls?  If 
two-family  districts  can  be  created,  why  not  districts  for  three, 
and  four,  and  five  family  houses?  If  not,  just  where  should 
the  distinction  be  made?  The  only  differentiation,  it  is  sub- 
mitted, which  is  clearly  based  upon  grave  considerations  of 
public  welfare  is  that  between  the  house  that  a  man  shares  with 
others  and  the  house  that  he,  with  his  wife  and  children,  occu- 
pies alone  and  can  make  a  real  home;  and  it  is  the  validity  of 
the  one-family  house  district  most  essential  to  the  public  wel- 
fare, which  the  courts  are  most  likely  to  sustain.44* 


**•  Since  the  writing  of  this  chapter,  a  number  of  decisions,  mentioned 
in  note  34  on  page  284  of  this  work,  have  been  rendered  in  New  Jersey  and 
one  in  Missouri,  holding  certain  zoning  ordinances  invalid ;  and  a  similar 
decision  is  said  to  have  been  given  in  Texas.  In  this  brief  note  there  is 
not  space  to  discuss  these  decisions  adequately.  In  New  Jersey  there  are 
statutes  authorizing  municipalities  to  pass  zoning  regulations,  and  the 
cases  in  that  state  decided  that  the  ordinances  in  question,  or  certain 
sections  of  them,  were  not  so  drawn  as  to  fulfil  the  requirements  of 
these  statutes.  As  a  rule  the  faults  in  these  ordinances  were  more  or 
less  obvious,  and  do  not  need  to  be  pointed  out  here.  In  no  instance 
did  the  court  intimate  that  zoning  was  contrary  to  the  New  Jersey 
constitution;  indeed,  the  opinions  indicate  there  that  the  judges  thought  it 
constitutional.  One  of  these  cases  (Handy  v.  Village  of  South  Orange, — 
Atl. — Feb.  21,  1922)  held  that  the  statute  on  which  the  ordinance  under 
review  was  based  (1920  ch.  240)  did  not  authorize  the  provision  which 
that  ordinance  contained  creating  one-family  house  districts.  It  does 
not  follow,  of  course,  that  under  a  proper  statute  a  proper  provision 
creating  such  a  district  would  not  be  valid ;  but  in  future  the  advocates 
of  such  districts  will  have  this  decision  to  reckon  with.  The  statute  has 
now  been  amended  (1922,  ch.  162)  to  authorize  such  districts. 

In  Missouri  there  is  no  statute  authorizing  zoning.  The  Missouri 
case  (City  of  St.  Louis  v.  Evraiff  and  Friedman,  Mo.  Supreme  Court. 
Oct.  Term,  1921 ),  therefore,  is  a  holding  that  zoning  in  the  absence  of 
such  a  statute  is  invalid.  The  dicta  in  that  case  cannot  be  regarded  as 
shaking  the  force  of  the  decisions  of  New  York  and  Massachusetts 
holding  zoning  to  be  constitutional,  or  the  conclusions  in  the  text  based 
upon  these  decisions. 

See  also  recent  adverse  decisions  said  to  have  been  rendered  in 
Illinois  and  Louisiana. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         293 
Note  E 

No.  i.    THE  MASSACHUSETTS  ZONING  CONSTITUTIONAL 
AMENDMENT,"  ART.  LX 

The  General  Court 4t  shall  have  power  to  limit  buildings  according 
to  their  use  or  construction  to  specified  districts  of  cities  and  towns. 

No.  2.    THE  NEW  YORK  ZONING  LAW  FOR  NEW  YORK  CITY  4T 

New  York  City  Charter,  Sec.  242-3.  Board  of  estimate:  power 
to  regulate  height  of  buildings,  and  to  amend,  supplement,  change  and 
enforce  regulations.  The  board  of  estimate  and  apportionment  shall 
have  power  to  regulate  and  limit  the  height  and  bulk  of  buildings 
hereafter  erected  and  to  regulate  and  determine  the  area  of  yards, 
courts  and  other  open  spaces.  The  board  shall  divide  the  city  into 
districts  of  such  number,  shape  and  area  as  it  may  deem  best  suited 
to  carry  out  the  purposes  of  this  section.  The  regulations  as  to  the 
height  and  bulk  of  buildings  and  the  area  of  yards,  courts  and  other 
open  spaces  shall  be  uniform  for  each  class  of  buildings  throughout 
each  district.  The  regulations  in  one  or  more  districts  may  differ 
from  those  in  other  districts.  Such  regulations  shall  be  designed  to 
secure  safety  from  fire  and  other  dangers  and  to  promote  the  public 
health  and  welfare,  including,  so  far  as  conditions  may  permit,  pro- 
visions for  adequate  light,  air,  and  convenience  of  access.  The  board 
shall  pay  reasonable  regard  to  the  character  of  buildings  erected  in 
each  district,  the  value  of  the  land  and  the  use  to  which  it  may  be  put 
to  the  end  that  such  regulations  may  promote  public  health,  safety 
and  welfare  and  the  most  desirable  use  for  which  the  land  of  each 
district  may  be  adapted  and  may  tend  to  conserve  the  value  of  build- 
ings and  enhance  the  value  of  land  throughout  the  city.  The  board 
shall  appoint  a  commission  to  recommend  the  boundaries  of  districts 
and  appropriate  regulations  to  be  enforced  therein.  Such  commis- 
sion shall  make  a  tentative  report  and  hold  public  hearings  thereon 
at  such  times  and  places  as  said  board  shall  require  before  submitting 
its  final  report.  Said  board  shall  not  determine  the  boundaries  of 
any  district  nor  impose  any  regulation  until  after  the  final  report  of 
a  commission  so  appointed.  After  such  final  report  said  board  shall 
afford  persons  interested  an  opportunity  to  be  heard  at  a  time  and 
place  to  be  specified  in  a  notice  of  hearing  to  be  published  for  ten 
consecutive  days  in  the  City  Record.  The  board  may  from  time  to 
time  after  public  notice  and  hearing  amend,  supplement  or  change 

"  Adopted   November  5,    1918. 

"That  is,  the  Legislature  of  the  state. 

4T 1914,  ch.  470,  as  amended  by  1916,  ch.  497,  503  and  1917,  ch.  601. 


294  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

said  regulations  or  districts  but  in  case  a  protest  against  a  proposed 
amendment,  supplement  or  change  be  presented,  duly  signed  and 
acknowledged  by  the  owners  of  twenty  per  centum  or  more  of  the 
frontage  proposed  to  be  altered,  or  by  the  owners  of  twenty  per  cen- 
tum of  the  frontage  immediately  in  the  rear  thereof,  or  by  the  owners 
of  twenty  per  centum  of  the  frontage  directly  opposite  the  frontage 
proposed  to  be  altered,  such  amendment  shall  not  be  passed  except  by 
a  unanimous  vote  of  the  board.  Said  regulations  shall  be  enforced 
by  the  superintendent  of  buildings  of  each  borough  and  the  tenement 
house  commissioner,  under  the  rules  and  regulations  of  the  board  of 
standards  and  appeals.  Said  regulations  of  the  board  of  estimate  and 
apportionment  may  provide  that  the  board  of  appeals  may  determine 
and  vary  their  application  in  harmony  with  their  general  purpose  and 
intent  and  in  accordance  with  general  or  specific  rules  therein  con- 
tained. 

Sec.  242-b.  Board  of  estimate;  powers  as  to  location  of  indus- 
tries and  buildings  and  enforcement  of  regulations.  The  board  of 
estimate  and  apportionment  may  regulate  and  restrict  the  location  of 
trades  and  industries  and  the  location  of  buildings  designed  for 
specified  uses,  and  may  divide  the  city  into  districts  of  such  number, 
shape  and  area  as  it  may  deem  best  suited  to  carry  out  the  purposes 
of  this  section.  For  each  such  district  regulations  may  be  imposed 
designating  the  trades  and  industries  that  shall  be  excluded  or  sub- 
jected to  special  regulations  and  designating  the  uses  for  which 
buildings  may  not  be  erected  or  altered.  Such  regulations  shall  be 
designed  to  promote  the  public  health,  safety  and  general  welfare. 
The  board  shall  give  reasonable  consideration,  among  other  things 
to  the  character  of  the  district,  its  peculiar  suitability  for  particular 
uses,  the  conservation  of  property  values,  and  the  direction  of  build- 
ing development  in  accord  with  a  well  considered  plan.  The  board 
shall  appoint  a  commission  to  recommend  the  boundaries  of  districts 
and  appropriate  regulations  and  restrictions  to  be  imposed  therein. 
Such  commission  shall  make  a  tentative  report  and  hold  public  hear- 
ings thereon  before  submitting  its  final  report  at  such  time  as  .-aid 
board  shall  require.  Said  board  shall  not  determine  the  boundaries 
of  any  district  nor  impose  any  regulations  or  restrictions  until  after 
the  final  report  of  a  commission  so  appointed.  After  such  final  report 
said  board  shall  afford  persons  interested  an  opportunity  to  be  heard 
at  a  time  and  place  to  be  specified  in  a  notice  of  hearing  to  be  pub- 
lished for  ten  consecutive  days  in  the  City  Record.  The  board  may 
from  time  to  time  after  public  notice  and  hearing  amend,  supplement 
or  change  said  regulations  or  districts  but  in  case  a  protest  against  a 
proposed  amendment,  supplement  or  change  be  presented,  duly  signed 
and  acknowledged  by  the  owners  of  twenty  per  centum  or  more  of 
the  frontage  proposed  to  be  altered,  or,  by  the  owners  of  twenty  per 
centum  of  the  frontage  immediately  in  the  rear  thereof,  or  by  the 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         295 

owners  of  twenty  per  centum  of  the  frontage  directly  opposite  the 
frontage  proposed  to  be  altered,  such  amendment  shall  not  be  passed 
except  by  a  unanimous  vote  of  the  board.  Said  regulations  shall  be 
enforced  by  the  superintendent  of  buildings  of  each  borough,  the 
tenement  house  commissioner  and  the  fire  commissioner  under  the 
rules  and  regulations  of  the  board  of  standards  and  appeals.  Said 
regulations  of  the  board  of  estimate  and  apportionment  may  provide 
that  the  board  of  appeals  may  determine  and  vary  their  application 
in  harmony  with  their  general  purpose  and  intent  and  in  accordance 
with  general  or  specified  rules  therein  contained. 

SEC.  7i8-d.  Board  of  Appeals.  The  appointed  members  of  the 
board  of  standards  and  appeals  and  the  chief  of  the  uniformed  force 
of  the  fire  department,  exclusive  of  the  other  members,  shall  hear  and 
decide  appeals  from  and  review  any  rule,  regulation,  amendment  or 
repeal  thereof,  order,  requirement,  decision  or  determination  of  a 
superintendent  of  buildings  made  under  the  authority  of  title  two  of 
chapter  nine  of  this  act  or  of  any  ordinance  or  of  the  fire  commis- 
sioner under  the  authority  of  title  three  of  chapter  fifteen  of  this  act 
or  of  any  ordinance,  or  of  the  labor  law.  They  shall  also  hear  and 
decide  all  matters  referred  to  them  or  upon  which  they  are  required 
to  pass  under  any  resolution  of  the  board  of  estimate  and  apportion- 
ment adopted  pursuant  to  sections  two  hundred  and  forty-two-a  and 
two  hundred  and  forty-two-b  of  this  chapter.  No  member  of  the 
board  shall  pass  upon  any  question  in  which  he  or  any  corporation 
in  which  he  is  a  stockholder  or  security  holder  is  interested. 

Hearings  on  appeals  shall  be  before  at  least  five  members  of  the 
board  of  appeals,  and  the  concurring  vote  of  five  members  of  the 
board  of  appeals  shall  be  necessary  to  a  decision. 

The  words  board  of  appeals  when  used  in  this  chapter  refer  to 
thp  said  appointed  members  of  the  board  of  standards  and  appeals 
and  the  chief  of  the  uniformed  force  of  the  fire  department,  when 
acting  under  the  powers  conferred  by  this  section. 

No.  5.    THE  NEW  YORK  ZONING  LAW  FOR  CITIES 

This  law  *"  gives  the  cities  of  New  York  state  the  same  powers  to 
zone  that  were  previously  given  the  city  of  New  York,  and  in  essen- 
tially the  same  language.  In  1920  **  the  law  was  amended  by  adding 
provisions  with  regard  to  appeals  as  follows: 

SEC.  81.  Board  of  Appeals,  i.  The  mayor  of  any  city,  except 
a  city  of  the  first  class,  may  appoint  a  board  of  appeals  consisting  of 
five  members,  each  to  be  appointed  for  three  years.  Such  board  of 
appeals  shall  hear  and  decide  appeals  from  and  review  any  order, 

48  The  law  is  1917,  ch.  483,  and  is  an  amendment  to  the  General  City 
Law.     It  does  not  apply  to  Rochester. 
48  Ch.  743- 


296  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

requirement,  decision  or  determination  made  by  an  administrative 
official  charged  with  the  enforcement  of  any  ordinance  adopted  pur- 
suant to  paragraphs  twenty-four  and  twenty-five  of  section  twenty  of 
this  chapter.  They  shall  also  hear  and  decide  all  matters  referred  to 
them  or  upon  which  they  are  required  to  pass  under  any  ordinance  of 
the  common  council  adopted  pursuant  to  such  two  paragraphs.  The 
concurring  vote  of  four  members  of  the  board  shall  be  necessary  to 
reverse  any  order,  requirement,  decision  or  determination  of  any  such 
administrative  official,  or  to  decide  in  favor  of  the  applicant  any 
matter  upon  which  they  are  required  to  pass  under  any  such  ordi- 
nance or  to  effect  any  variation  in  such  ordinance.  Every  decision  of 
such  board  shall,  however,  be  subject  to  review  by  certiorari.  Such 
appeal  may  be  taken  by  any  person  aggrieved  or  by  an  officer,  depart- 
ment, board  or  bureau  of  the  city. 

2.  Appeal  how  taken.     Such  appeal  shall  be  taken  within  such 
time  as  shall  be  prescribed  by  the  board  of  appeals  by  general  rule, 
by  filing  with  the  officer  from  whom  the  appeal  is  taken  and  with  the 
board  of  appeals  of  a  notice  of  appeal,  specifying  the  grounds  thereof. 
The  officer  from  whom  the  appeal  is  taken  shall  forthwith  transmit 
to  the  board  all  the  papers  constituting  the  record  upon  which  the 
action  appealed  from  was  taken. 

3.  Stay.     An  appeal  stays  all  proceedings  in  furtherance  of  the 
action  appealed   from,  unless  the  officer   from  whom  the   appeal   is 
taken  certifies  to  the  board  of  appeals  after  the  notice  of  appeal  shall 
have  been  filed  with  him  that  by  reason  of  facts  stated  in  the  cer- 
tificate a  stay  would,  in  his  opinion,  cause  imminent  peril  to  life  or 
property,  in  which  case  proceedings  shall   not  be  stayed  otherwise 
than  by  a  restraining  order  which  may  be  granted  by  the  board  of 
appeals  or  by  the  supreme  court,  on  application,  on  notice  to  the 
officer  from  whom  the  appeal  is  taken  and  on  due  cause  shown. 

4.  Hearing  of  and  decision  upon  appeal.     The  board  of  appeals 
shall  fix  a  reasonable  time  for  the  hearing  of  the  appeal  and  give  due 
notice  thereof  to  the  parties,  and  decide  the  same  within  reasonable 
time.    Upon  the  hearing,  any  party  may  appear  in  person  or  hy  a.^i-nt 
or  by  attorney.    The  board  of  appeals  may  reverse  or  affirm,  wholly 
or  partly,  or  may  modify  the  order,  requirement,  decision  or  determi- 
nation appealed  from  and  shall  make  such  order,  requirement,  deci- 
sion or  determination  as   in  its  opinion   ought   to  be   made    in   the 
premises,  and  to  that  end  shall  have  all  the  powers  of  the  officer  from 
whom  the  appeal  is  taken.     Where  there  are  practical  difficulties  or 
unnecessary  hardship  in  the  way  ,of  carrying  out  the  strict  letter  of 
such  ordinance,  the  board  of  appeals  shall  have  power  of  passing 
upon  appeals,  to  vary  or  modify  "any  of  its  rules,  regulations  or  pro- 
visions relating  to  the  construction,  structural  changes  in.  equipment 
or  alteration  of  buildings  or  structures,  so  that  the  spirit  of  the  ordi- 


nance  shall  be  observed,  public  safety  secured  and  substantial  justice 
done. 

SEC.  82.  Certiorari  to  review  decision  of  board  of  appeals.  I. 
Petition.  Any  person  or  persons,  jointly  or  severally  aggrieved  by 
any  decision  of  the  board  of  appeals,  or  any  officer,  department,  board 
or  bureau  of  the  city,  may  present  to  the  supreme  court  a  petition, 
duly  verified,  setting  forth  that  such  decision  is  illegal,  in  whole  or 
in  part,  specifying  the  grounds  of  the  illegality.  Such  petition  must 
be  presented  to  a  justice  of  the  supreme  court  or  at  a  special  term 
of  the  supreme  court  within  thirty  days  after  the  filing  of  the  decision 
in  the  office  of  the  board. 

2.  Writ  of  certiorari.     Upon  presentation  of  such  petition,  the 
justice  or  court  may  allow  a  writ  of  certiorari  directed  to  the  board 
of  appeals  to  review  such  decision  of  the  board  of  appeals  and  shall 
prescribe  therein  the  time  within  which  a  return  thereto  must  be 
made  and  served  upon  the  relator  or  his  attorney,  which  shall  not  be 
less  than  ten  days  and  may  be  extended  by  the  court  or  a  justice 
thereof.     Such   writ   shall   be   returnable  to   a   special   term  of  the 
supreme  court  of  the  judicial  district  in  which  the  property  affected, 
or  a  portion  thereof,  is  situated.    The  allowance  of  the  writ  shall  not 
stay  proceedings  upon  the  decision  appealed  from,  but  the  court  may, 
on  application,  on  notice  to  the  board  and  on  due  cause  shown,  grant 
a  restraining  order. 

3.  Return  to  writ.     The  board  of  appeals  shall  not  be  required 
to  return  the  original  papers  acted  upon  by  it,  but  it  shall  be  sufficient 
to  return  certified  or  sworn  copies  thereof  or  of  such  portions  thereof 
as  may  be  called  for  by  such  writ.     The  return  must  concisely  set 
forth  such  other  facts  as  may  be  pertinent  and  material  to  show  the 
grounds  of  the  decision  appealed  from  and  must  be  verified. 

4.  Proceedings  upon  return.    If,  upon  the  hearing,  it  shall  appear 
to  the  court  that  testimony  is  necessary  for  the  proper  disposition  of 
the  matter,  it  may  take  evidence  or  appoint  a  referee  to  take  such 
evidence  as  it  may  direct  and  report  the  same  to  the  court  with  his 
findings  of  fact  and  conclusions  of  law,  which  shall  constitute  a  part 
of  the  proceedings  upon  which  the  determination  of  the  court  shall 
be  made.    The  court  may  reverse  or  affirm,  wholly  or  partly,  or  may 
modify  the  decision  brought  up  for  review. 

5.  Costs.     Costs  shall  not  be  allowed  against  the  board,  unless 
it  shall  appear  to  the  court  that  it  acted  with  gross  negligence  or  in 
bad  faith  or  with  malice  in  making  the  decision  appealed  from. 

6.  Preferences.     All  issues  in  any  proceeding  under  this  section 
shall  have  preference  over  all  other  civil  actions  and  proceedings. 

SEC.  83.  Amendments,  alterations  and  changes  in  district  lines. 
The  common  council  may  from  time  to  time  on  its  own  motion  or  on 
petition,  after  public  notice  and  hearing,  amend,  supplement  or  change 


298 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


the  regulations  and  districts  established  under  any  ordinance  adopted 
pursuant  to  paragraphs  twenty-four  and  twenty-five  of  section  twenty 
of  this  chapter.  Whenever  the  owners  of  fifty  per  centum  or  more 
of  the  frontage  in  any  district  or  part  thereof  shall  present  a  petition 
duly  signed  and  acknowledged  to  the  common  council  requesting  an 
amendment,  supplement,  change  or  repeal  of  the  regulations  pre- 
scribed for  such  district  or  part  thereof,  it  shall  be  the  duty  of  the 
council  to  vote  upon  said  petition  within  ninety  days  after  the  filing 
of  the  same  by  the  petitioners  with  the  secretary  of  the  council.  If, 
however,  a  protest  against  such  amendment,  supplement  or  change  be 
presented,  duly  signed  and  acknowledged  by  the  owners  of  twenty 
per  centum  or  more  of  any  frontage  proposed  to  be  altered,  or  by  the 
owners  of  twenty  per  centum  of  the  frontage  immediately  in  the  rear 
thereof,  or  by  the  owners  of  twenty  per  centum  of  the  frontage 
directly  opposite  the  frontage  proposed  to  be  altered,  such  amendment 
shall  not  be  passed  except  by  the  unanimous  vote  of  the  council. 
SEC.  2.  This  act  shall  take  effect  immediately. 


Building 
regulations 


City 

districted. 


Regula- 
tions. 

Design  of 
regulations. 


Consider*- 


No.  4.    THE  NEW  JERSEY  ZONING  LAW  FOR  CITIES* 

An  Act  to  enable  cities  to  regulate  and  limit  the  height  and  bulk 
of  buildings,  to  regulate  and  determine  the  area  of  yards,  courts  and 
other  open  spaces,  and  to  regulate  and  restrict  the  location  of  build- 
ings for  trades  and  industries. 

Be  it  enacted,  etc. 

i.  The  common  council  or  governing  commission  of  cities  shall 
have  power  to  regulate  and  limit  the  height  and  bulk  of  buildings 
hereafter  erected  and  to  regulate  and  determine  the  area  of  yards, 
courts  and  other  open  spaces.  The  common  council  or  governing 
commission  may  divide  the  city  into  districts  of  such  number,  shape 
and  area  as  it  may  deem  best  suited  to  carry  out  the  purposes  of  this 
section.  The  regulations  as  to  the  height  and  bulk  of  buildings  and 
the  area  of  yards,  courts  and  other  open  spaces  shall  be  uniform  for 
each  class  of  buildings  throughout  each  district.  The  regulation^  in 
one  or  more  districts  may  differ  from  those  in  other  districts.  Such 
regulations  shall  be  designed  to  secure  safety  from  fire  and  other 
clangers  and  to  promote  the  public  health  and  welfare,  including  pro- 
vision for  adequate  light,  air,  and  convenience  of  access.  The  com- 
mon council  or  governing  commission  shall  pay  reasonable  reganl  to 
the  character  of  buildings  erected  in  each  district,  the  value  of  the 
land  and  the  use  to  which  it  may  be  put  to  the  end  that  such  regula- 
tions may  promote  public  health,  safety  and  welfare  and  the  nuM 
desirable  use  for  which  the  land  of  each  district  may  be  adapted  and 
may  tend  to  conserve  the  values  of  the  buildings  and  enhance  the 
value  of  land  throughout  the  city. 

"1900,  ch.  229. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES 


299 


2.  The  common  council  or  governing  commission  of  cities  shall 
also  have  the  power  to  regulate  and  restrict  the  location  of  buildings 
designed  for  specified  uses,  as  well  as  the  location  of  trades  and  indus- 
tries, and  may  divide  the  city  into  districts  of  such  number,  shape  and 
area  as  it  may  deem  best  suited  to  carry  out  the  purposes  of  this  sec- 
tion.   For  each  such  district  regulations  may  be  imposed  designating 
the  use  for  which  buildings  may  not  be  erected  or  altered,  and  desig- 
nating the  trades  and  industries  that  shall  be  excluded  or  subjected 
to  special  regulations.    Such  regulations  shall  be  designed  to  promote 
the  public  health,  safety  and  general  welfare.     The  common  council 
or  governing  commission  shall  give  reasonable  consideration,  among 
other  things,  to  the  character  of  the  district,  its  peculiar  suitability 
for  particular  uses,  the  conservation  of  property  values,  and  the  di- 
rection of  building  development  in  accord  with  a  well-considered  plan ; 
provided,   however,  no  such   regulation  or   restriction   shall   become 
effective  in  any  city  until  after  a  public  hearing,  notice  of  which  has 
been  published  for  not  less  than  two  weeks  in  one  or  more  newspapers 
of  general  circulation  printed  and  published  in  such  city,  and  if  there 
is  no  newspaper  printed  and  published  in  such  city  then  in  one  or 
more  newspapers  having  a  general  circulation  in  such  city. 

3.  The  common  council  or  governing  commission  of  cities  accept- 
ing the  provisions  of  this  act  shall  appoint  a  commission  to  be  known 
as  "Commission  on  Building  Districts  and  Restrictions,"  to  consist  of 
three  members  for  a  term  of  four  years.    The  members  of  such  com- 
mission on  building  districts   and  restrictions   shall  consist  of  three 
members  of  whom  one  shall  be  appointed  chairman.     Such  members 
shall  be  paid  an  annual  salary  of  twenty-five  hundred  dollars  per 
year,  except  that  the  chairman  shall  be  paid  three  thousand  dollars 
per  year. 

'  4.  The  common  council  or  governing  commission  may  from 
time  to  time,  after  public  notice  and  hearing,  amend,  supplement  or 
change  said  regulations  or  districts.  Such  proposed  amendment,  sup- 
plement or  change,  however,  must  first  be  referred  to  the  commission 
on  building  districts  and  restrictions  for  consideration  and  report 
before  final  action  shall  be  taken  thereon  by  said  common  council  or 
governing  commission.  But  in  case  a  protest  against  a  proposed 
amendment,  supplement  or  change  be  presented,  duly  signed  and 
acknowledged  by  the  owners  of  twenty  per  centum  or  more  of  the 
frontage  of  the  property  proposed  to  be  altered,  or  by  the  owners  of 
twenty  per  centum  of  the  frontage  upon  the  street  immediately  in  the 
rear  thereof,  or  by  the  owners  of  twenty  per  centum  of  the  frontage 
directly  opposite  the  property  proposed  to  be  altered,  such  amend- 
ment shall  not  be  passed  except  by  a  three-quarters  vote  of  the  com- 
mon council  or  governing  commission. 

5.     Such  commission  on  building  districts  and  restrictions   shall 
investigate  and  examine  into  the  opening,  grading,  widening,  light- 


Uses. 


Salary. 


May 
change 
regula- 
tions. 


300 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


May  waive 
restric- 
tions. 


Secretary 
and  as- 
sistants. 


City  plan 
not 

affected. 


Local  ordi- 
nances to 
govern. 


When 
building 
code  to 
govern. 


Acts  in- 
operative. 


Proviso. 


ing  and  paving  of  streets  and  sidewalks  and  shall  make  recommenda- 
tions to  the  governing  body  from  time  to  time  of  any  such  improve- 
ments as  in  their  opinion  will  advance  the  welfare  of  such  city  or 
the  inhabitants  thereof. 

6.  Such  commission   on   building   districts   and    restrictions   and 
the  governing  body  shall  have  power  and  authority  in  exceptional 
cases  in  their  discretion  to  waive  any  of  the  regulations  or  restric- 
tions theretofore  adopted  or  imposed,  but  only  after  a  public  hearing 
and  upon  the  unanimous  vote  of  all  the  members  thereof. 

7.  Such    commission    on    building    districts    and    restrictions    is 
authorized  to  employ  a  secretary  and  such  clerical  and  other  assistants 
as  may  be  agreed  upon  by  the  members  of  such  commission  and  such 
governing  body  is  hereby  authorized  to  appropriate  and  raise  such 
sum  or  sums  of  money  as  may  be  necessary  for  the  support  of  such 
commission  as  other  appropriations  are  made  and  raised. 

8.  This  act  shall  not  be  construed  so  as  to  limit  or  abridge  any 
right,  power  or  authority  conferred  or  vested  in  city  plan  commissions 
in  cities  of  this  State. 

9.  Wherever    the    provisions    of    any    ordinance    or    regulation 
adopted  by  the  common  council  or  governing  commission  under  the 
provisions  of  this  act  impose  requirements  for  lower  height  of  build- 
ings or  a  less  percentage  of  lot  that  may  be  occupied,  or  require  wider 
or  larger  courts  or  deeper  yards  than  are  imposed  or  required  by 
existing  provision  of  law  or  ordinance,  the  provision  of  such  local 
ordinance  or  regulation  adopted  under  the  provision  of  this  act  shall 
govern.     Where,  however,  the  provisions  of  the  New  Jersey  tene- 
ment house  law,  the  building  code  or  other  ordinance  or  regulation 
of  any  city  impose  requirements  for  lower  height  of  building,  or  less 
percentage  of  lot  that  may  be  occupied,  or  require  wider  or  larger 
courts  or  deeper  yards  than  are  required  by  any  ordinance  or  regula- 
tion which  may  be  adopted  by  the  common  council  or  governing  com- 
mission under  the  provision  of  this  act,  the  provision  of  said  New 
Jersey  tenement  house  law  or  said  building  code  or  other  ordinance 
or  regulation  shall  govern. 

10.  All  acts  and  parts  of  acts  inconsistent  with  the  provisions 
of  this  act  and  more  especially  an  act  entitled  "An  act  to  enable  cities 
of  the  first  and  second  class  to  regulate  and  limit  the  height  and  bulk 
of  buildings,  to  regulate  and  determine  the  area  of  yards,  courts  and 
other  open  spaces,  and  to  regulate  and  restrict  the  location  of  trades 
and   industries,"   approved   February   twenty-seventh,    one   thousand 
nine  hundred  and  eighteen,  are  hereby  declared  inoperative  in  any 
city  where  the  provisions  of  this  act  shall  have  been  adopted  as  here- 
inafter provided;  provided,  hou'crcr,  that   if  any  provisions  of  this 
act  shall  be  declared  invalid,  it  shall  not  affect  the  remainder  of  this 
act,  but  the  same  shall  continue  in  full  force  and  effect. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         301 

ii.  This  act  shall  take  effect  immediately,  but  its  provisions  shall 
remain  inoperative  in  any  city  of  this  State  until  adopted  by  a  ma- 
jority vote  of  the  legal  voters  thereof  at  an  election  under  the  same 
conditions  as  provided  in  sections  six  and  seven  of  an  act  entitled 
"An  act  relative  to  the  division  of  the  uniform  fire-fighting  force,  of 
cities  of  the  first  class  in  this  State,  into  two  platoons,"  approved 
February  eighteenth,  one  thousand  nine  hundred  and  sixteen. 

No.  5.    THE  DISTRICT  OF  COLUMBIA  ZONING  LAW" 

An  Act  to  regulate  the  height,  area,  and  use  of  buildings  in  the 
District  of  Columbia  and  to  create  a  Zoning  Commission,  and  for 
other  purposes. 

"Be  it  enacted,  etc. 

"That  to  protect  the  public  health,  secure  the.  public  safety,  and 
to  protect  property  in  the  District  of  Columbia  there  is  hereby  created 
a  Zoning  Commission,  which  shall  consist  of  the  Commissioners  of 
the  District  of  Columbia,  the  officer  in  charge  of  public  buildings 
and  grounds  of  the  District  of  Columbia,  and  the  Superintendent  of 
the  United  States  Capitol  Building  and  Grounds,  which  said  commis- 
sion shall  have  all  the  powers  and  perform  all  the  duties  hereinafter 
specified  and  shall  serve  without  additional  compensation.  Such 
employees  of  the  government  of  the  District  of  Columbia  as  may  be 
necessary  to  carry  out  the  purposes  of  this  Act  shall  be  assigned 
to  such  duty  by  the  Commissioners  of  the  District  of  Columbia  with- 
out additional  compensation.  There  is  hereby  authorized  for  the 
expenses  of  said  Commission,  including  the  employment  of  expert 
services  and  all  incidental  and  contingent  expenses,  a  sum  not  to 
exceed  $5,000,  payable  one-half  out  of  any  money  in  the  United 
States  Treasury  not  otherwise  appropriated  and  the  other  half  out  of 
the  revenues  of  the  District  of  Columbia. 

"SEC.  2.  That  within  six  months  after  the  passage  of  this  Act 
and  after  public  notice  and  hearing  as  hereinafter  provided,  the  said 
commission  shall  divide  the  District  of  Columbia  into  certain  districts, 
to  be  known,  respectively,  as  height,  area,  and  use  districts,  and  shall 
adopt  regulations  specifying  the  height  and  area  of  buildings  there- 
after to  be  erected  or  altered  therein  and  the  purposes  for  which 
buildings  and  premises  therein  may  be  used :  Provided,  That  such 
regulations  may  differ  in  the  various  districts :  Provided  further,  That 
the  permissible  height  of  buildings  in  any  district  shall  not  exceed  the 
maximum  height  of  building  now  authorized  upon  any  street  in  any 
part  of  that  district  by  the  Act  of  Congress  approved  June  i,  1910, 

81  U.  S.  Public  Act  No.  153,  66th  Congress,  approved  March  i,  1920 
(41  U.  S.  Stat.  at  Large,  500). 


Referen- 
dum. 


District  of 

Columbia 
Zoning 
Commis- 
sion 
created. 


Height, 
area  and 
use  dis- 
tricts to 
be  estab- 
lished. 


302 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


Public 
hearings 
before  es- 
tablishing 
districts, 
etc. 


Accessories 
permitted 
in  resi- 
dence dis- 
tricts. 


Advertise- 
ment of 
hearings. 


Proviso. 

Adjourned 

meetings. 


Establish- 
ment of 
districts. 


Height, 
etc..    of 
buildings 
in, to  be 
specified. 


Changes 
restricted. 


Proviso. 
Petition  of 
owners 
required. 


Action  on 
changes. 


Order* 
and  regu- 
lations au- 
thorized. 


Provisos. 
Construc- 
tion 

a!l.>w<-<! 
if  permit 


and  amendments  thereto,  regulating  the  height  of  buildings  in  the 
District  of  Columbia:  And  provided  further,  That  no  such  districts 
shall  be  established,  nor  shall  any  regulations  therefor  be  adopted, 
nor  shall  the  height,  area,  or  use  of  buildings  to  be  erected  therein 
be  prescribed  until  said  commission  has  afforded  persons  interested 
an  opportunity  to  be  heard  at  a  public  hearing  as  hereinafter  pro- 
vided: and  provided  further,  That  in  residence  districts  the  usual 
accessories  of  a  residence  located  on  the  same  lot,  including  the  office 
of  a  physician,  dentist,  or  other  person,  and  including  a  private  garage 
containing  space  for  not  more  than  five  automobiles,  shall  not  be 
prohibited." 

"SEC.  3.  That  wherever,  under  the  provision  of  this  Act,  it  is 
required  that  a  public  hearing  shall  be  held,  notice  of  the  time  and 
place  of  such  hearing  shall  be  published  for  not  less  than  ten  consecu- 
tive days  in  one  or  more  newspapers  of  general  circulation  printed 
and  published  in  the  District  of  Columbia;  and  such  public  hearing 
may  be  adjourned  from  time  to  time:  Provided,  That  if  the  time  and 
place  of  the  adjourned  meeting  is  publicly  announced  when  the  ad- 
journment is  had,  no  further  notice  of  such  adjourned  meeting  need 
be  published." 

"SEC.  4.  That  after  the  public  hearings  herein  provided  for  shall 
have  been  concluded,  said  commission  shall  definitely  determine  the 
number  and  boundaries  of  the  districts  which  it  is  hereby  authorized 
and  directed  to  establish,  and  shall  specify  the  height  and  area  of  the 
buildings  which  may  thereafter  be  erected  therein,  and  shall  prescribe 
the  purposes  for  which  such  buildings  thereafter  erected  may  or  may 
not  be  used.  Said  districts  so  established  shall  not  be  changed  except 
on  order  of  said  commission  after  public  hearing.  Said  commission 
may  initiate  such  changes,  or  they  may  be  initiated  upon  the  petition 
of  the  owners  affected.  Where  the  proposed  change  is  to  add  a  con- 
tiguous area  to  a  use,  height,  or  area  district,  the  owners  of  at  least 
50  per  centum  of  the  street  frontage  proposed  to  be  changed  must 
join  in  the  petition:  Provided.  That  if  the  frontage  proposed  to  be 
changed  is  not  a  contiguous  area,  the  owners  of  at  least  50  per  centum 
of  a  frontage  within  the  area  not  less  than  three  blocks  in  length  must 
join  in  such  petition  before  it  may  be  considered  by  said  commission. 
No  such  change  shall  be  made,  either  by  said  commission  on  its  own 
motion  or  upon  such  petition,  except  with  the  unanimous  vote  of  said 
commission,  if  the  owners  of  at  least  20  per  centum  of  the  frontage 
proposed  to  be  changed  protest  against  such  cha: 

"SEC.  5.  That  said  commission  is  authorized  and  empowered  to 
make  such  orders  and  adopt  such  regulations  not  inconsistent  with 
law  as  may  be  necessary  to  accomplish  the  purposes  and  carry  into 
effect  the  provisions  of  this  Act:  I'rnridcd.  That  no  order  or  rriru- 
lation  so  adopted  shall  require  any  change  in  the  plans,  construction, 
or  designated  use  of  (a)  a  building  for  which  a  permit  shall  have 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         3<>3 


been  issued,  or  plans  for  which  shall  be  on  file  with  the  inspector  of 
buildings  of  the  District  of  Columbia  at  the  time  the  orders  or  regula- 
tions authorized  under  this  Act  are  promulgated;  or  (b)  a  permit  for 
the  erection  of  which  shall  be  issued  within  thirty  days  after  promul- 
gation of  the  orders  or  regulations  authorized  or  adopted  under  this 
Act  and  the  construction  of  which  in  either  of  the  above  cases  shall 
have  been  diligently  prosecuted  within  a  year  from  the  date  of  such 
permit  and  the  ground  story  framework  of  which,  including  the 
second  tier  of  beams,  shall  have  been  completed  within  said  year, 
and  which  entire  building  shall  be  completed  according  to  such  plans 
within  two  years  of  the  date  of  the  promulgation  of  such  orders  or 
regulations;  or  (c)  prevent  the  restoration  of  a  building  partially 
destroyed  by  fire,  explosion,  act  of  God  or  the  public  enemy,  or  pre- 
vent the  continuance  of  the  use  of  such  building  or  part  thereof  as 
such  use  existed  at  the  time  of  such  partial  destruction,  or  prevent  a 
change  of  such  existing  use  except  under  the  limitations  provided 
herein  in  relation  to  existing  buildings  and  premises :  Provided 
further,  That  no  frame  building  that  has  been  damaged  by  fire  or 
otherwise  more  than  one-half  of  its  original  value  shall  be  restored 
within  the  fire  limits  as  provided  by  the  building  regulations  of  the 
District  of  Columbia;  or  (d)  prevent  the  restoration  of  a  wall  de- 
clared unsafe  by  the  inspector  of  buildings  of  the  District  or  by  a 
board  of  survey  appointed  in  accordance  with  any  existing  law  or 
regulation." 

"SEC.  6.  That  any  lawful  use  of  a  building  or  premises  existing 
at  the  time  of  the  adoption  of  orders  and  regulations  made  under  the 
authority  of  this  Act  may  be  continued,  although  such  use  does  not 
conform  with  the  provisions  hereof  or  with  the  provisions  of  such 
orders  and  regulations;  and  such  use  may  be  extended  throughout 
the  building,  provided  no  structural  alteration,  except  those  required 
by  law  or  regulation,  is  made  therein  and  no  new  building  is  erected. 
Where  the  boundary  line  of  any  use  district  divides  a  lot  in  a  single 
ownership  at  the  time  of  the  adoption  of  orders  and  regulations  under 
the  authority  of  this  Act,  the  commission  may  permit  a  use  author- 
ized on  either  portion  of  such  lot  to  extend  to  the  entire  lot,  but 
not  more  than  twenty-five  feet  beyond  the  boundary  line  of  the  use 
district." 

"SEC.  7.  That  maps  of  the  districts  established  by  said  commis- 
sion and  copies  of  all  orders  and  regulations  as  to  the  height  and 
area  of  buildings  to  be  erected  therein  and  as  to  the  uses  to  which 
such  buildings  may  be  lawfully  devoted,  and  copies  of  all  other 
official  orders  and  regulations  of  the  commission  shall  be  filed  in  the 
office  of  the  Engineer  Commissioner  of  the  District  of  Columbia. 
Copies  of  all  orders  and  regulations  shall  be  published  in  one  or  more 
newspapers  printed  in  the  District  of  Columbia  for  the  information 
of  all  concerned." 


Restora- 
tion of 
buildings 
partially 
destroyed 
by  fire, 
etc. 


Restric- 
tion as  to 
frame 
buildings. 
Restora- 
tion of 
unsafe 
walls. 


Lots  lo- 
cated in 
adjoining 
use    dis- 
tricts. 


Maps, 
orders, 
etc..  of 
commis- 
sion to  be 
filed. 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


Certificate 
of  occu- 
pancy re- 
quired for 
use  of 
buildings, 
etc. 

Buildings 
violating 
orders, 
etc.,  de- 
clared 
nuisances. 


Penalty 

for  main- 
taining. 


Injunction 
proceed- 
ings. 


"SEC.  8.  That  it  shall  be  unlawful  to  use  or  permit  the  use  of 
any  building  or  premises  or  part  thereof  hereafter  created,  erected, 
changed,  or  converted  wholly  or  partly  in  its  use  or  structure  until  a 
certificate  of  occupancy  shall  have  been  issued  By  authority  of  said 
zoning  commission." 

"SEC.  9.  That  buildings  erected,  altered,  or  raised,  or  converted 
in  violation  of  any  of  the  provisions  of  this  Act  or  the  orders  and 
regulations  made  under  the  authority  thereof  are  hereby  declared 
to  be  common  nuisances;  and  the  owner  or  person  in  charge  of  or 
maintaining  any  such  buildings,  upon  conviction  on  information  filed 
in  the  police  court  of  the  District  of  Columbia  by  the  corporation 
counsel  or  any  of  his  assistants  in  the  name  of  said  District,  and 
which  court  is  hereby  authorized  to  hear  and  determine  such  cases, 
shall  be  adjudged  guilty  of  maintaining  a  common  nuisance,  and  shall 
be  punished  by  a  fine  of  not  more  than  $100  per  day  for  each  and 
every  day  such  nuisance  shall  be  permitted  to  continue,  and  shall  be 
required  by  said  court  to  abate  such  nuisance.  The  corporation 
counsel  of  the  District  of  Columbia  may  maintain  an  action  in  the 
Supreme  Court  of  the  District  of  Columbia  in  the  name  of  the  Dis- 
trict of  Columbia  to  abate  and  perpetually  enjoin  such  nuisance. 

"SEC.  10.  That  the  Commissioners  of  the  District  of  Columbia 
shall  enforce  the  provisions  of  this  Act  and  the  orders  and  regula- 
tions adopted  by  said  Zoning  Commission  under  the  authority  thereof, 
and  nothing  herein  contained  shall  be  construed  to  limit  the  authority 
of  the  Commissioners  of  the  District  of  Columbia  to  make  municipal 
regulations  as  heretofore :  Provided,  That  such  regulations  are  not 
inconsistent  with  the  provisions  of  this  law  and  the  orders  and  regula- 
tions made  thereunder.  In  interpreting  and  applying  the  provisions 
of  this  Act  and  of  the  orders  and  regulations  made  thereunder  they 
shall  be  held  to  be  the  minimum  requirements  for  the  promotion  of 
the  public  health,  safety,  comfort,  convenience,  and  general  welfare. 
This  Act  shall  not  abrogate  or  annul  any  easements,  covenants,  or 
other  agreements  between  parties:  Provided,  however.  That  as  to 
all  future  building  construction  or  use  of  premises  where  this  Act  or 
any  orders  or  regulations  adopted  under  the  authority  thereof  impose 
a  greater  restriction  upon  the  use  of  buildings  or  premises  or  upon 
height  of  building,  or  require  larger  open  spaces  than  are  imposed 
or  required  by  existing  law,  regulations,  or  permits,  or  by  such  ease- 
ments, covenants,  or  agreements,  the  provisions  of  this  Act  and  of 
the  orders  and  regulations  made  thereunder  shall  control." 

"SEC.  ii.  That  all  laws  or  parts  of  laws  and  regulations  in  con- 
flict with  the  provisions  of  this  Act  are  hereby  repealed." 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        305 
No.  6.    THE  NEW  YORK  CITY  BUILDING  ZONE  RESOLUTION  M 

A  Resolution  regulating  and  limiting  the  height  and  bulk  of  buildings 
hereafter  erected  and  regulating  and  determining  the  area  of  yards, 
courts  and  other  open  spaces,  and  regulating  and  restricting  the 
location  of  trades  and  industries  and  the  location  of  buildings  de- 
signed for  specified  uses  and  establishing  the  boundaries  of  dis- 
tricts for  the  said  purposes. 

Be  it  resolved  by  the  Board  of  Estimate  and  Apportionment  of 
The  City  of  New  York: 

ARTICLE  I — DEFINITIONS 

SEC.  I.  Definitions.  Certain  words  in  this  resolution  are  defined 
for  the  purposes  thereof  as  follows : 

(o)  Words  used  in  the  present  tense  include  the  future;  the  singu- 
lar number  includes  the  plural  and  the  plural  the  singular;  the  word 
"lot"  includes  the  word  "plot" ;  the  word  "building"  includes  the  word 
"structure." 

(6)  The  "street  line"  is  the  dividing  line  between  the  street  and 
the  lot. 

(c)  The  "width  of  the  street"  is  the  mean  of  the  distances  between 
the  sides  thereof  within  a  block.  Where  a  street  borders  a  public 
place,  public  park  or  navigable  body  of  water  the  width  of  the  street 
is  the  mean  width  of  such  street  plus  the  width,  measured  at  right 
angles  to  the  street  line,  of  such  public  place,  public  park  or  body  of 
water. 

(rf)  The  "curb  level,"  for  the  purpose  of  measuring  the  height  of 
any  portion  of  a  building,  is  the  mean  level  of  the  curb  in  front  of 
such  portion  of  the  building.  But  where  a  building  is  on  a  corner  lot 
the  curb  level  is  the  mean  level  of  the  curb  on  the  street  of  greatest 
width.  If  such  greatest  width  occurs  on  more  than  one  street  the  curb 
level  is  the  mean  level  of  the  curb  on  that  street  of  greatest  width 
which  has  the  highest  curb  elevation.  The  "curb  level"  for  the  pur- 
pose of  regulating  and  determining  the  area  of  yards,  courts  and  open 
spaces  is  the  mean  level  of  the  curb  at  that  front  of  the  building 
where  there  is  the  highest  curb  elevation.  Where  no  curb  elevation 
has  been  established  or  the  building  does  not  adjoin  the  street  the 
average  ground  level  of  the  lot  shall  be  considered  the  curb  level. 

(?)  A  "street  wall"  of  a  building,  at  any  level,  is  the  wall  or  part 
of  the  building  nearest  to  the  street  line. 

(/)  The  "height  of  a  building"  is  the  vertical  distance  measured 
in  the  case  of  flat  roofs  from  the  curb  level  to  the  level  of  the  highest 
point  of  the  roof  beams  adjacent  to  the  street  wall,  and  in  the  case  of 

M  Adopted  July  25,  1916. 


306          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

pitched  roofs  from  the  curb  level  to  the  mean  height  level  of  the 
gable.  Where  no  roof  beams  exist  or  there  are  structures  wholly 
or  partly  above  the  roof  the  height  shall  be  measured  from  the  curb 
level  to  the  level  of  the  highest  point  of  the  building.  Where  a  build- 
ing is  a  tenement  house  as  defined  in  the  Tenement  House  Law  the 
height  of  the  building  on  the  street  line  shall  be  measured  as  pre- 
scribed in  said  law  for  the  measurement  of  the  height  of  a  tenement 
house  and  such  measurement  shall  be  from  the  curb  level  as  that  term 
is  used  in  said  law. 

(g)  The  "depth  of  a  lot"  is  the  mean  distance  from  the  street 
line  of  the  lot  to  its  rear  line  measured  in  the  general  direction  of 
the  side  lines  of  the  lot. 

(/t)  A  "rear  yard"  is  an  open  unoccupied  space  on  the  same 
lot  with  a  building  between  the  rear  line  of  the  building  and  the 
rear  line  of  the  lot. 

(i)  The  "depth  of  a  rear  yard"  is  the  mean  distance  between  the 
rear  line  of  the  building  and  the  rear  line  of  the  lot. 

(/)  Lots  or  portions  of  lots  shall  be  deemed  "back  to  back"  when 
they  are  on  opposite  sides  of  the  same  part  of  a  rear  line  common 
to  both  and  the  opposite  street  lines  on  which  the  lots  front  are 
parallel  with  each  other  or  make  an  angle  with  each  other  of  not 
over  45  degrees. 

(k)  A  "court"  is  an  open  unoccupied  space,  other  than  a  rear 
yard,  on  the  same  lot  with  a  building.  A  court  not  extending  to  the 
street  or  to  a  rear  yard  is  an  "inner  court."  A  court  extending  to 
the  street  or  a  rear  yard  is  an  "outer  court."  A  court  on  the  lot 
line  extending  through  from  the  street  to  a  rear  yard  or  another 
street  is  a  "side  yard." 

(/)  The  "height  of  a  yard  or  a  court"  at  any  given  level  shall 
be  measured  from  the  lowest  level  of  such  yard  or  court  as  actually 
constructed  or  from  the  curb  level,  if  higher,  to  such  level.  The 
highest  level  of  any  given  wall  bounding  a  court  or  yard  shall  be 
deemed  to  be  the  mean  height  of  such  wall.  Where  a  building  is  a 
tenement  house,  as  defined  in  the  Tenement  House  Law,  the  height 
of  a  yard  or  a  court  shall  be  measured  as  prescribed  in  such  law. 

(m)  The  "least  dimension"  of  a  yard  or  court  at  any  level  is  the 
least  of  the  horizontal  dimensions  of  such  yard  or  court  at  such  level. 
It"  two  opposite  sides  of  a  yard  or  court  are  not  parallel  the  hori- 
zontal dimension  between  them  shall  be  deemed  to  be  the  mean  dis- 
tance between  them. 

(n)  The  "length  of  an  outer  court"  at  any  given  point  shall  be 
measured  in  the  general  direction  of  the  side  lines  of  such  court 
from  the  end  opposite  the  end  opening  on  a  street,  or  a  rear  yard, 
to  such  point. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        307 


ARTICLE   II — USE  DISTRICTS 

SEC.  2.  Use  Districts.  For  the  purpose  of  regulating  and  re- 
stricting the  location  of  trades  and  industries  and  the  location  of 
buildings  designed  for  specified  uses,  the  City  of  New  York  is  hereby 
divided  into  three  classes  of  districts:  (i)  residence  districts,  (2) 
business  districts,  and  (3)  unrestricted  districts;  as  shown  on  the  use 
district  map  which  accompanies  this  resolution  and  is  hereby  declared 
to  be  part  hereof.  The  use  districts  designated  on  said  map  are 
hereby  established.  The  use  district  map  designations  and  map  desig- 
nation rules  which  accompany  said  use  district  map  are  hereby  de- 
clared to  be  part  thereof.  No  building  or  premises  shall  be  erected 
or  used  for  any  purpose  other  than  a  purpose  permitted  in  the  use 
district  in  which  such  building  or  premises  is  located. 

SEC.  3.  Residence  Districts.  In  a  residence  district  no  build- 
ing shall  be  erected  other  than  a  building,  with  its  usual  accessories, 
arranged,  intended  or  designed  exclusively  for  one  or  more  of  the 
following  specified  uses: 

(1)  Dwellings,  which   shall   include   dwellings   for  one  or  more 
families  and  boarding  houses  and  also  hotels  which  have  thirty  or 
more   sleeping  rooms. 

(2)  Clubs,  excepting  clubs  the  chief  activity  of  which  is  a  service 
customarily  carried  on  as  a  business. 

(3)  Churches. 

(4)  Schools,  libraries  or  public  museums. 

(5)  Philanthropic  or  eleemosynary  uses  or  institutions,  other  than 
correctional  institutions. 

(6)  Hospitals  and  sanitariums. 

(7)  Railroad  passenger  stations. 

(8)  Farming,  truck  gardening,  nurseries  or  green  houses. 

In  a  residence  district  no  building  or  premises  shall  be  used  for 
any  use  other  than  a  use  above  specified  for  which  buildings  may 
be  erected  and  for  the  accessory  uses  customarily  incident  thereto. 
The  term  accessory  use  shall  not  include  a  business  nor  shall  it  in- 
clude any  building  or  use  not  located  on  the  same  lot  with  the  build- 
ing or  use  to  which  it  is  accessory.  A  private  garage  for  more  than 
five  motor  vehicles  shall  not  be  deemed  an  accessory  use. 

SEC.  4.  Business  Districts,  (a)  In  a  business  district  no  build- 
ing or  premises  shall  be  used,  and  no  building  shall  be  erected  which 
is  arranged,  intended  or  designed  to  be  used,  for  any  of  the  fol- 
lowing specified  trades,  industries  or  uses : M 

53  The  list  is  here  given  as  amended  December  21,  1917.  As  a  further 
aid  to  the  zoner  endeavoring  to  prepare  a  similar  list  suitable  for  use 
in  any  given  locality,  the  following  additional  industries,  selected  from 


308          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

(1)  Ammonia,  chlorine  or  bleaching  powder  manufacture. 

(2)  Asphalt  manufacture  or  refining. 

(3)  Assaying  (other  than  gold  or  silver). 

(4)  Blacksmithing  or  horseshoeing. 

(5)  Boiler  making. 

(6)  Brewing  or  distilling  of  liquors. 

(7)  Carpet  cleaning. 

(8)  Celluloid  manufacture. 

(9)  Crematory. 

(10)   Distillation  of  coal,  wood  or  bones, 
(n)  Dyeing  or  dry  cleaning. 

(12)  Electric  central  station  power  plant. 

(13)  Fat  rendering. 

(14)  Fertilizer  manufacture. 

(15)  Garage  for  more  than  five  motor  vehicles,  not  including  a 

warehouse  where  motor  vehicles  are  received  for  dead 
storage  only,  and  not  including  a  salesroom  where  motor 
vehicles  are  kept  for  sale  or  for  demonstration  purposes 
only. 

(16)  Gas  (illuminating  or  heating)  manufacture  or  storage. 

a  list  prepared  after  an  examination  of  the  various  zoning  ordinances  in 
this  country,  by  J.  P.  Fox,  Esq.,  of  New  York  City,  are  here  given : 

Acetylene  gas   manufacturing. 

Blast  furnace. 

Brick,  concrete  products,  terra  cotta  or  tile  manufacturing. 

Candle    manufacturing. 

Coke  manufacturing. 

Creosote  manufacturing  or  treatment. 

Disinfectant,  insecticide  or  poison  manufacturing. 

Dyestuff   manufacturing. 

Emery  cloth  and  sandpaper  manufacturing. 

Explosives,  fireworks  or  gunpowder  manufacturing. 

Forging. 

Gasoline  or  naphtha  refining. 

Match  manufacturing. 

Oiled,  rubber  or  leather  goods  manufacturing. 

Ore  reduction. 

Paper  and  pulp  manufacturing. 

Pickle,  sauerkraut,  sausage  or  vinegar  manufacturing. 

Potash  refining. 

Pyroxylin    manufacturing. 

Railroad  yard  or  roundhouse. 

Rolling   mill. 

Salt  manufacturing. 

Shoe   blacking   manufacturing. 

Soda  and  soda  compounds  manufacturing. 

Stove  polish  manufacturing. 

Tobacco  manufacturing  or  treatment  for  chewing  purposes. 

Yeast  manufacturing. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        309 

(17)  Glue,  size  and  gelatine  manufacture. 

(18)  Incineration  or   reduction  of  garbage,   offal,  dead   animals 

or  refuse. 

(19)  Iron,  steel,  brass  or  copper  works. 

(20)  Junk,  scrap  paper  or  rag  storage  or  baling. 

(21)  Lamp  black  manufacture. 

(22)  Lime,  cement  or  plaster  of  Paris  manufacture. 

(23)  Milk  bottling  and  distributing  station. 

(24)  Oil  cloth  or  linoleum  manufacture. 

(25)  Paint,  oil,  varnish  or  turpentine  manufacture. 

(26)  Petroleum   refining  or  storage. 

(27)  Printing  ink  manufacture. 

(28)  Raw  hides  or  skins — storage,  curing  or  tanning. 

(29)  Repair  shop  for  motor  vehicles. 

(30)  Rubber  manufacture  from  the  crude  material. 

(31)  Saw  or  planing  mill. 

(32)  Shoddy  manufacture  or  wool  scouring. 

(33)  Slaughtering  of  animals. 

(34)  Smelting. 

(35)  Soap  manufacture. 

(36)  Stable  for  more  than  five  horses. 

(37)  Starch,  glucose  or  dextrine  manufacture. 

(38)  Stock  yards. 

(39)  Stone  or  monumental  works. 

(40)  Sugar  refining. 

(41)  Sulphurous,    sulphuric,    nitric   or    hydrochloric    acid   manu- 

facture. 

(42)  Tallow,  grease  or  lard  manufacturing  or  refining. 

(43)  Tar  distillation  or  manufacture. 

(44)  Tar  roofing  or  tar  waterproofing  manufacture. 

(6)  In  a  business  district  no  building  or  premises  shall  be  used, 
and  no  building  shall  be  erected,  which  is  arranged,  intended  or  de- 
signed to  be  used  for  any  trade,  industry  or  use  that  is  noxious  or 
offensive  by  reason  of  the  emission  of  odor,  dust,  smoke,  gas  or  noise ; 
but  car  barns  or  places  of  amusement  shall  not  be  excluded. 

(c)  In  a  business  district  no  building  or  premises  shall  be  used, 
and  no  building  shall  be  erected,  which  is  arranged,  intended  or  de- 
signed to  be  used,  for  any  kind  of  manufacturing,  except  that  any 
kind  of  manufacturing  not  included  within  the  prohibitions  of  para- 
graphs a  and  b  of  this  section  may  be  carried  on  provided  not  more 
than  25  per  cent,  of  the  total  floor  space  of  the  building  is  so  used,  but 
space  equal  to  the  area  of  the  lot  may  be  so  used  in  any  case,  although 
in  excess  of  said  25  per  cent.  The  printing  of  a  newspaper  shall 
not  be  deemed  manufacturing.  No  use  permitted  in  a  residence 
district  by  section  3  shall  be  excluded  from  a  business  district, 


310  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

SEC.  5.  Unrestricted  Districts.  The  term  "unrestricted  district" 
is  used  to  designate  the  districts  for  which  no  regulations  or  restric- 
tions are  provided  by  this  article. 

SEC.  6.  Existing  Buildings  and  Premises,  (a)  Any  use  exist- 
ing in  any  building  or  premises  at  the  time  of  the  passage  of  this 
resolution  and  not  conforming  to  the  regulations  of  the  use  district 
in  which  it  is  maintained,  may  be  continued  therein.  No  existing 
building  designed,  arranged,  intended  or  devoted  to  a  use  not  per- 
mitted by  this  article  in  the  district  in  which  such  use  is  located 
shall  be  enlarged,  extended,  reconstructed  or  structurally  altered 
unless  such  use  is  changed  to  a  use  permitted  in  the  district  in  which 
such  building  is  located.  Such  building  may,  however,  be  recon- 
structed or  structurally  altered  to  an  extent  not  greater  than  50  per 
cent,  of  the  value  of  the  building,  exclusive  of  foundations,  provided 
that  no  use  in  such  building  is  changed  or  extended,  except  as  au- 
thorized in  paragraph  b  of  this  section,  and  provided,  further,  that 
no  use  included  in  any  one  of  the  enumerated  subdivisions  of  para- 
graph a  of  section  4  is  changed  into  a  use  included  in  any  other 
enumerated  subdivision  of  paragraph  a  of  section  4  or  into  a  use  pro- 
hibited by  paragraph  b  of  section  4,  and  also  provided  that  no  use 
prohibited  by  paragraph  b  of  section  4  is  changed  into  another  use 
prohibited  by  paragraph  b  of  section  4  or  into  a  use  included  in  an 
enumerated  subdivision  of  paragraph  a  of  section  4. 

(6)  Any  use  existing  in  any  building  or  premises  at  the  time  of 
the  passage  of  this  resolution  and  not  conforming  to  the  regulations 
of  the  use  district  in  which  it  is  maintained  may  be  changed,  and 
such  use  may  be  extended  throughout  the  building,  provided  that 
in  either  case: 

1 i )  No  structural  alterations  shall  be  made  in  the  building,  except 
as  authorized  by  paragraph  a  of  this  section,  and 

(2)  In  a  residence  district  no  portion  of  a  building  devoted  to  a 
use  included  in  subdivision  I  of  section  3  shall  be  changed  to  any  use 
prohibited  in  a  residence  district,  and 

(3)  In  a  residence  district  no  building  or  premises,  unless  devoted 
to  one  of  the  uses  that  is  by  section  4  prohibited  in  a  business  district, 
shall  be  changed  to  any  of  such  uses,  and 

(4)  In  a  residence  or  business  district  no  building  or  part  thereof 
and  no  premises  unless  devoted  to  one  of  the  uses  that  is  by  para- 
graphs a  or  b  of  section  4  prohibited  in  a  business  district,  shall  be 
changed  to  any  of  such  uses. 

If  a  use  is  changed  as  authorized  in  this  section,  the  new  use 
may  thereafter  be  changed,  subject  to  the  limitations  imposed  by  sub- 
divisions I,  2,  3  and  4  of  this  paragraph.*4 

SEC.  7.     Use  District  Exceptions.    The   Board  of   Appeals,  cre- 

MSec.  6.  amended  as  above  December  21,  1917. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         3" 

ated  by  chapter  503  of  the  laws  of  1916,  may,  in  appropriate  cases, 
after  public  notice  and  hearing,  and  subject  to  appropriate  condi- 
tions and  safeguards,  determine  and  vary  the  application  of  the  use 
district  regulations  herein  established  in  harmony  with  their  general 
purpose  and  intent  as  follows: 

(a)  Permit  the  extension  of  an  existing  building  and  the  exist- 
ing use  thereof  upon  the  lot  occupied  by  such  building  at  the  time 
of  the  passage  of  this  resolution  or  permit  the  erection  of  an  addi- 
tional building  upon  a  lot  occupied  at  the  time  of  the  passage  of  this 
resolution  by  a  commercial  or  industrial  establishment  and  which 
additional  building  is  a  part  of  such  establishment; 

(6)  Where  a  use  district  boundary  line  divides  a  lot  in  a  single 
ownership  at  the  time  of  the  passage  of  this  resolution,  permit  a  use 
authorized  on  either  portion  of  such  lot  to  extend  to  the  entire  lot, 
but  not  more  than  25  feet  beyond  the  boundary  line  of  the  district 
in  which  such  use  is  authorized; 

(c)  Permit  the  extension  of  an  existing  or  proposed  building  into 
a  more  restricted  district  under  such  conditions  as  will   safeguard 
the  character  of  the  more  restricted  district ; " 

(d)  Permit  in  a  residence  district  a  central  telephone  exchange 
or  any  building  or  use  in  keeping  with  the  uses  expressly  enumerated 
in  section  3  as  the  purposes  for  which  buildings  or  premises  may  be 
erected  or  used  in  a  residence  district; 

(e)  Permit  in  a  business  district  the  erection  or  extension  of  a 
garage  or  stable  in  any  portion  of  a  street  between  two  intersecting 
streets  in  which  portion  there  exists  a  garage  for  more  than  five 
motor  vehicles  or  a  stable  for  more  than  five  horses  at  the  time  of 
the  passage  of  this  resolution ; M 

(/)  Grant  in  undeveloped  sections  of  the  city  temporary  and 
conditional  permits  for  not  more  than  two  years  for  structures  and 
uses  in  contravention  of  the  requirements  of  this  article. 

(<7)  Permit  in  a  business  or  residence  district  the  erection  of  a 
garage  provided  the  petitioner  files  the  consents  duly  acknowledged 
of  the  owners  of  80  per  cent,  of  the  frontage  deemed  by  the  Board 
to  be  immediately  affected  by  the  proposed  garage.  Such  permit 
shall  specify  the  maximum  size  or  capacity  of  the  garage  and  shall 
impose  appropriate  conditions  and  safeguards  upon  the  construction 
and  use  of  the  garage." 

ARTICLE  III — HEIGHT  DISTRICTS 

SEC.  8.  Height  Districts.  For  the  purpose  of  regulating  and 
limiting  the  height  and  bulk  of  buildings  hereafter  erected,  the  City 

88  Par.  c  of  sec.  7,  amended  as  above,  March  23,  1917. 

58  Par.  e  of  sec.  7,  amended  as  above,  December  21,  1917. 

w  Par.  <7  of  sec.  7,  amended  as  above,  September  21,  1917. 


312  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

of  New  York  is  hereby  divided  into  six  classes  of  districts :  (a)  three- 
quarter  times  districts,  (b)  one  times  districts,  (c)  one  and  one- 
quarter  times  districts,  (rf)  one  and  one-half  times  districts,  (r)  two 
times  districts,  (/)  two  and  one-half  times  districts;  as  shown  on 
the  height  district  map  which  accompanies  this  resolution  and  is 
hereby  declared  to  be  part  hereof.  The  height  districts  designated 
on  said  map  are  hereby  established.  The  height  district  map  desig- 
nations and  map  designation  rules  which  accompany  said  height 
district  map  are  hereby  declared  to  be  part  thereof.  No  building 
or  part  of  a  building  shall  be  erected  except  in  conformity  with 
the  regulations  herein  prescribed  for  the  height  district  in  which 
such  building  is  located. 

(a)  In  a  three-quarter  times  district  no  building  shall  be  erected 
to  a  height  in  excess  of  three-quarter  times  the  width  of  the  street, 
but  for  each  one  foot  that  the  building  or  a  portion  of  it  sets  back 
from  the  street  line  one  foot  shall  be  added  to  the  height  limit  of 
such  building  or  such  portion  thereof. 

(b)  In  a  one  times  district  no  building  shall  be  erected  to  a  height 
in  excess  of  the  width  of  the  street,  but  for  each  one  foot  that  the 
building  or  a  portion  of  it  sets  back  from  the  street  line  two  feet 
shall  be  added  to  the  height  limit  of  such  building  or  such  portion 
thereof. 

(c)  In  a  one  and  one-quarter  times  district  no  building  shall  be 
erected  to  a  height  in  excess  of  one  and  one-quarter  times  the  width 
of  the  street,  but  for  each  one  foot  that  the  building  or  a  portion  of 
it  sets  back  from  the  street  line  two  and  one-half  feet  shall  be  added 
to  the  height  limit  of  such  building  or  such  portion  thereof. 

(rf)  In  a  one  and  one-half  times  district  no  building  shall  be 
erected  to  a  height  in  excess  of  one  and  one-half  times  the  width  of 
the  street,  but  for  each  one  foot  that  the  building  or  a  portion  of 
it  sets  back  from  the  street  line  three  feet  shall  be  added  to  the 
height  limit  of  such  building  or  such  portion  thereof. 

(e)  In  a  two  times  district  no  building  shall  be  erected  to  a  height 
in  excess  of  twice  the  width  of  the  street,  but  for  each  one  foot  that 
the  building  or  a  portion  of  it  sets  back  from  the  street  line  four  feet 
shall  be  added  to  the  height  limit  of  such  building  or  such  portion 
thereof. 

(/)  In  a  two  and  one-half  times  district  no  building  shall  be 
erected  to  a  height  in  excess  of  two  and  one-half  times  the  width 
of  the  street,  but  for  each  one  foot  that  the  building  or  a  portion  of 
it  sets  back  from  the  street  line  five  feet  shall  be  added  to  the  height 
limit  of  such  building  or  such  portion  thereof."* 

SEC.  9.  Height  District  Exceptions,  (a)  On  streets  less  than 
50  feet  in  width  the  same  height  regulations  shall  be  applied  as  on 

"•  Section  8  amended  as  above  November  25,   1921, 


streets  50  feet  in  width  and,  except  for  the  purposes  of  paragraph  d 
of  this  section,  on  streets  more  than  100  feet  in  width  the  same  height 
regulations  shall  be  applied  as  on  streets  100  feet  in  width* 

(&)  Along  a  narrower  street  near  its  intersection  with  a  wider 
street,  any  building  or  any  part  of  any  building  fronting  on  the  nar- 
rower street  within  100  feet,  measured  at  right  angles  to  the  side 
of  the  wider  street,  shall  be  governed  by  the  height  regulations  pro- 
vided for  the  wider  street.  A  corner  building  on  such  intersecting 
streets  shall  be  governed  by  the  height  regulations  provided  for  the 
wider  street  for  150  feet  from  the  side  of  such  wider  street,  measured 
along  such  narrower  street. 

(c)  Above  the  height  limit  at  any  level  for  any  part  of  a  build- 
ing a  dormer,  elevator  bulkhead  or  other  structure  may  be  erected 
provided  its  frontage  length  on  any  given  street  be  not  greater  than 
60  per  cent,  of  the  length  of  such  street  frontage  of  such  part  of  the 
building.    Such  frontage  length  of  such  structure  at  any  given  level 
shall  be  decreased  by  an  amount  equal  to  one  per  cent,  of  such  street 
frontage  of  such  part  of  the  building  for  every  foot  such  level  is 
above  such  height  limit.    If  there  are  more  than  one  such  structures, 
their  aggregate  frontage  shall  not  exceed  the  frontage  length  above 
permitted  at  any  given  level. 

(d)  If  the  area  of  the  building  is  reduced  so  that  above  a  given 
level  it  covers  in  the  aggregate  not  more  than  25  per  cent,  of  the 
area  of  the  lot,  the  building  above  such  level  shall  be  excepted  from 
the  foregoing  provisions  of  this  article.    Such  portion  of  the  building 
may  be  erected  to  any  height,  provided  that  the  distance  which  it 
sets  back  from  the  street  line  on  each  street  on  which  it  faces,  plus 
half  of  the  width  of  the  street,  equals  at  least  75  feet.    But  for  each 
one  per  cent,  of  the  width  of  the  lot'  on  the  street  line  that  such 
street  wall  is  less  in  length  than  such  width  of  the  lot,  such  wall 
may  be  erected   four  inches  nearer  to  the  street  line. 

(e)  When  at  the  time  plans  are  filed  for  the  erection  of  a  building 
there  are  buildings  in  excess  of  the  height  limits  herein  provided 
within  50  feet  of  either  end  of  the  street  frontage  of  the  proposed 
building  or  directly  opposite  such  building  across  the  street,  the  height 
to  which  the  street  wall  of  the  proposed  building  may  rise  shall  be 
increased  by  an  amount  not  greater  than  the  average  excess  height 
of  the  walls  on  the  street  line  within  50  feet  of  either  end  of  the 
street  frontage  of  the  proposed  building  and  at  right  angles  to  the 
street  frontage  of  the  proposed  building  on  the  opposite  side  of  the 
street.     The  average  amount  of  such  excess  height  shall   be  com- 
puted by  adding  together  the  excess  heights  above  the  prescribed 
height  limit  for  the  street  frontage  in  question  of  all  of  the  walls 
on  the  street  line  of  the  buildings  and  parts  of  buildings  within  the 
above  defined  frontage  and  dividing  the  sum  by  the  total  number  of 
buildings  and  vacant  plots  within  such  frontage. 


314  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

(/)  Nothing  in  this  article  shall  prevent  the  projection  of  a 
cornice  beyond  the  street  wall  to  an  extent  not  exceeding  five  per 
cent,  of  the  width  of  the  street  nor  more  than  five  feet  in  any  case. 
Nothing  in  this  article  shall  prevent  the  erection  above  the  height 
limit  of  a  parapet  wall  or  cornice  solely  for  ornament  and  without 
windows  extending  above  such  height  limit  not  more  than  five  per 
cent,  of  such  height  limit,  but  such  parapet  wall  or  cornice  may  in 
any  case  be  at  least  five  and  one-half  feet  high  above  such  height 
limit. 

(g)  The  provisions  of  this  article  shall  not  apply  to  the  erection 
of  church  spires,  belfries,  chimneys,  flues  or  gas  holders. 

(h)  Where  not  more  than  50  feet  of  a  street  frontage  would 
otherwise  be  subjected  to  a  height  limit  lower  than  that  allowed  im- 
mediately beyond  both  ends  of  such  frontage,  the  height  limit  on  such 
frontage  shall  be  equal  to  the  lesser  of  such  greater  height  limits. 

(i)  If  an  additional  story  or  stories  are  added  to  a  building  exist- 
ing at  the  time  of  the  passage  of  this  resolution,  the  existing  walls 
of  which  are  in  excess  of  the  height  limits  prescribed  in  this  article, 
the  height  limits  for  such  additional  story  or  stories  shall  be  computed 
from  the  top  of  the  existing  walls  as  though  the  latter  were  not  in 
excess  of  the  prescribed  height  limits  and  the  carrying  up  of  existing 
elevator  and  stair  enclosures  shall  be  exempted  from  the  provisions 
of  this  article. 

ARTICLE  IV — AREA  DISTRICTS 

SEC.  10.  Area  Districts.  For  the  purpose  of  regulating  and  de- 
termining the  area  of  yards,  courts  and  other  open  spaces  for  build- 
ings hereafter  erected,  the  City  of  New  York  is  hereby  divided  into 
five  classes  of  area  districts:  A,  B,  C,  D  and  E;  as  shown  on  the 
area  district  map  which  accompanies  this  resolution  and  is  hereby 
declared  to  be  part  hereof.  The  area  districts  designated  on  said  map 
are  hereby  established.  The  area  district  map  designations  and  map 
designation  rules  which  accompany  said  area  district  map  are  hereby 
declared  to  be  a  part  thereof.  No  building  or  part  of  a  building 
shall  be  erected  except  in  conformity  with  the  regulations  herein 
prescribed  for  the  area  district  in  which  such  building  is  located. 
Unless  otherwise  expressly  provided  the  term  rear  yard,  side  yard, 
outer  court  or  inner  court  when  used  iu  this  article  shall  be  deemed 
to  refer  only  to  a  rear  yard,  side  yard,  outer  court  or  inner  court 
required  by  this  article.  No  lot  area  shall  be  so  reduced  or  diminished 
that  the  yards,  courts  or  open  spaces  shall  be  smaller  than  prescribed 
in  this  article. 

SEC.  II.  A  Districts.  In  an  A  district  a  court  at  any  given 
height  shall  be  at  least  one  inch  in  least  dimension  fur  each  one  foot 
of  such  height. 

SEC.  12.     B  Districts.     In  a  B  district  a  rear  yard  at  any  given 


height  shall  be  at  least  two  inches  in  least  dimension  for  each  one 
foot  of  such  height.  The  depth  of  a  rear  yard  at  its  lowest  level  shall 
be  at  least  10  per  cent,  of  the  depth  of  the  lot,  but  need  not  exceed 
10  feet  at  such  level.  An  outer  court  or  a  side  yard  at  any  given 
height  shall  be  at  least  one  inch  in  least  dimension  for  each  one  foot 
of  such  height.  An  outer  court  at  any  given  point  shall  be  at  least 
one  and  one-half  inches  in  least  dimension  for  each  one  foot  of 
length.  But  for  each  one  foot  that  an  outer  court  at  any  given  height 
would,  under  the  above  rules,  be  wider  in  its  least  dimension  for 
such  height  than  the  minimum  required  by  its  length,  one  inch  shall 
be  deducted  from  the  required  least  dimension  for  such  height  for 
each  24  feet  of  such  height.  A  side  yard  for  its  length  within  50  feet 
of  the  street  may  for  the  purposes  of  the  above  rule  be  considered  an 
outer  court. 

SEC.  13.  C  Districts,  (a)  In  a  C  district  a  rear  yard  at  any 
given  height  shall  be  at  least  three  inches  in  least  dimension  for  each 
one  foot  of  such  height.  The  depth  of  a  rear  yard  at  its  lowest  level 
shall  be  at  least  10  per  cent,  of  the  depth  of  the  lot  but  need  not  exceed 
10  feet  at  such  level.  An  outer  court  or  a  side  yard  at  any  given 
height  shall  be  at  least  one  and  one-half  inches  in  least  dimension 
for  each  one  foot  of  such  height.  An  outer  court  at  any  given  point 
shall  be  at  least  one  and  one-half  inches  in  least  dimension  for  each 
one  foot  of  length.  On  a  lot  not  more  than  30  feet  in  mean  width 
an  outer  court  or  a  side  yard  at  any  given  height  shall  be  not  less 
than  one  inch  in  least  dimension  for  each  one  foot  of  such  height, 
and  an  inner  court  at  any  given  height  shall  be  either  ( i )  not  less 
than  two  inches  in  least  dimension  for  each  one  foot  of  such  height 
or  (2)  it  shall  be  of  an  equivalent  area  as  hereinafter  specified  in 
paragraph  c  of  section  17. 

(&)  If  the  owner  or  owners  of  any  part  of  a  C  district  set  aside 
perpetually  for  the  joint  recreational  use  of  the  residents  of  such 
part  designated  by  them,  an  area  at  least  equal  to  10  per  cent,  of  the 
area  of  such  part  in  addition  to  all  yard  and  court  requirements 
for  a  B  district,  such  part  shall  be  subject  to  the  regulations  herein 
prescribed  for  a  B  district.  Such  joint  recreational  space  shall  be 
composed  of  one  or  more  tracts,  each  of  which  shall  be  at  least  40 
feet  in  least  dimension  and  5,000  square  feet  in  area  and  shall  be 
approved  by  the  Board  of  Appeals  as  suitable  for  the  joint  recrea- 
tional use  of  such  residents. 

SEC.  14.  D  Districts,  (a)  In  a  D  district  a  rear  yard  at  any 
given  height  shall  be  at  least  four  inches  in  least  dimension  for  each 
one  foot  of  such  height.  The  depth  of  a  rear  yard  at  its  lowest  level 
shall  be  at  least  10  per  cent,  of  the  depth  of  the  lot,  but  need  not 
exceed  10  feet  at  such  level.  If  a  building  in  a  D  district  is  located 
in  a  residence  district  as  designated  on  the  use  district  map,  the  depth 
of  a  rear  yard  at  its  lowest  level  shall  be  at  least  20  per  cent,  of  the 


3i6          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

depth  of  the  lot,  but  need  not  exceed  20  feet  at  such  level.  How- 
ever, for  each  one  foot  in  excess  of  10  feet  of  the  depth  of  such 
rear  yard  at  its  lowest  level,  there  may  be  substituted  one  foot  of 
depth  of  unoccupied  space  across  the  whole  width  of  the  front  of 
the  lot  at  the  curb  level,  between  the  street  line  and  the  street  wall 
of  the  building. 

(&)  In  a  D  district  an  outer  court  or  a  side  yard  at  any  given 
height  shall  be  at  least  two  inches  in  least  dimension  for  each  one 
foot  of  such  height.  An  outer  court  at  any  given  point  shall  be  at 
least  two  inches  in  least  dimension  for  each  one  foot  of  length.  On 
a  lot  not  more  than  30  feet  in  mean  width  an  outer  court  or  a  side 
yard  at  any  given  height  shall  be  not  less  than  one  and  one-half 
inches  in  least  dimension  for  each  one  foot  of  such  height.  On  such 
lot  an  outer  court  at  any  given  point  shall  be  not  less  than  one  and 
one-half  inches  in  least  dimension  for  each  one  foot  of  length.  On 
such  lot  an  inner  court  at  any  given  height  shall  be  either  (i)  not 
less  than  three  inches  in  least  dimension  for  each  one  foot  of  such 
height  or  (2)  it  shall  be  of  an  equivalent  area  as  specified  in  para- 
graph c  of  section  17. 

(c)  In  a  D  district  no  building  located  within  a  residence  district 
as  designated  on  the  use  district  map  shall  occupy  at  the  curb  level 
more  than  60  per  cent,  of  the  area  of  the  lot.  if  an  interior  lot,  or 
80  per  cent,  if  a  corner  lot.  In  computing  such  percentage  any  part 
of  the  area  of  any  corner  lot  in  excess  of  8,000  square  feet  shall  be 
considered  an  interior  lot. 

(rf)  If  the  owner  or  owners  of  any  part  of  a  D  district  set  aside 
perpetually  for  the  joint  recreational  use  of  the  residents  of  such  part 
designated  by  them,  an  area  at  least  equal  to  10  per  cent,  of  the  area 
of  such  part  in  addition  to  all  yard  and  court  requirements  for  a  C 
district,  such  part  shall  be  subject  to  the  regulations  herein  prescribed 
for  a  C  district.  Such  joint  recreational  space  shall  be  composed  of 
one  or  more  tracts,  each  of  which  shall  be  at  least  40  feet  in  least 
dimension  and  5,000  square  feet  in  area  and  shall  be  approved  by 
the  Board  of  Appeals  as  suitable  for  the  joint  recreational  use  of 
such  residents. 

SEC.  15.  E  Districts,  (a)  In  an  E  district  a  rear  yard  at  any 
given  height  shall  be  at  least  five  inches  in  least  dimension  for  each 
one  foot  of  such  height.  The  depth  of  a  rear  yard  at  its  lowest  level 
shall  be  at  least  15  per  cent,  of  the  depth  of  the  lot,  but  need  not  ex- 
ceed 15  feet  at  such  level.  If  a  building  in  an  E  district  is  located  in 
a  residence  district  as  designated  on  the  use  district  map,  the  depth  of 
a  rear  yard  at  its  lowest  level  shall  be  at  least  25  per  cent,  of  the  depth 
of  the  lot,  but  need  not  exceed  25  feet  at  such  level.  However,  for 
each  one  foot  in  excess  of  10  feet  of  the  depth  of  such  rear  yard  at 
its  lowest  level  there  may  be  substituted  one  foot  of  depth  of  unoc- 
cupied space  across  the  whole  width  of  the  front  of  the  lot  at  the 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        317 

curb  level  between  the  street  line  and  the  street  wall  of  the  building. 
In  an  E  district  on  at  least  one  side  of  every  building  located  within 
a  residence  district  there  shall  be  a  side  yard  along  the  side  lot  line 
for  the  full  depth  of  the  lot  or  back  to  the  rear  yard. 

(&)  In  an  E  district  an  outer  court  or  side  yard  at  any  given 
height  shall  be  at  least  two  and  one-half  inches  in  least  dimension 
for  each  one  foot  of  such  height.  On  a  lot  not  more  than  50  feet 
in  mean  width  an  outer  court  or  a  side  yard  at  any  given  height 
shall  be  at  least  two  inches  in  least  dimension  for  each  one  foot  of 
such  height.  An  outer  court  at  any  given  point  shall  be  at  least  two 
and  one-half  inches  in  least  dimension  for  each  one  foot  of  length. 

(c)  In  an  E  district  no  building  located  within  a  residence  dis- 
trict as  designated  on  the  use  district  map  shall  occupy  at  the  curb 
level  more  than  50  per  cent,  of  the  area  of  the  lot,  if  an  interior  lot, 
or  70  per  cent,  if  a  corner  lot,  and  above  a  level  18  feet  above  the 
curb  no  building  shall  occupy  more  than  30  per  cent,  of  the  area  of 
the  lot,  if  an  interior  lot,  or  40  per  cent,  if  a  corner  lot.  In  com- 
puting such  percentage  any  part  of  the  area  of  any  corner  lot  in 
excess  of  8,000  square  feet  shall  be  considered  an  interior  lot. 

SEC.  16.  Rear  Yards,  (a)  Except  in  A  districts,  for  lots  or  por- 
tions of  lots  that  are  back  to  back  there  shall  be  rear  yards  extending 
along  the  rear  lot  lines  of  such  lots  .or  portions  of  lots  wherever  they 
are  more  than  55  feet  back  from  the  nearest  street.  Such  rear  yard 
shall  be  at  least  of  the  area  and  dimensions  herein  prescribed  for  the 
area  district  in  which  it  is  located  at  every  point  along  such  rear 
lot  line.  Within  55  feet  of  the  nearest  street  no  rear  yards  shall  be 
required.  No  rear  yard  shall  be  required  on  any  corner  lot  nor  on 
the  portion  of  any  lot  that  is  back  to  back  with  a  corner  lot. 

(b)  Where  a  building  is  not  within  a  residence  district  as  desig- 
nated on  the  use  district  map,  the  lowest  level  of  a  rear  yard  shall 
not  be  above  the  sill  level  of  the  second  story  windows,  nor  in  any 
case  more  than  23  feet  above  the  curb  level.     Where  a  building  is 
within  a  residence  district  the  lowest  level  of  a  rear  yard  shall  not 
be  above  the  curb  level,  except  that  not  more  than  40  per  cent,  of  the 
area  of  the  yard  may  be  occupied  by  the  building  up  to  a  level  18 
feet  above  the  curb  level.     In  the  case  of  a  church,  whether  within 
or  without  a  residence  district,  such  40  per  cent,  may  be  occupied  up 
to  a  level  of  30  feet  above  the  curb  level. 

(c)  Chimneys  or  flues  may  be  erected  within  a  rear  yard  provided 
they  do  not  exceed  five  square  feet  in  area  in  the  aggregate  and  do 
not  obstruct  ventilation. 

(d)  Except  in  A  districts,  where  a  building  on  an  interior  lot 
between  lots   for  which   rear  yards   are   required   runs   through   the 
block   from  street  to  street  or  to  within   55   feet  of  another  street, 
there  shall  be  on  each  side  lot  line  above  the  sill  level  of  the  second 
story  windows  and  in  any  case  above  a  level  23  feet  above  the  curb 


3i8          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

level  a  court  of  at  least  equivalent  area  at  any  given  height  to  that 
required  for  an  inner  court  at  such  height  and  having  a  least  dimen- 
sion not  less  than  that  required  for  an  outer  court  at  the  same  height. 

(e)  When  a  proposed  building  is  on  a  lot  which  is  back  to  back 
with  a  lot  or  lots  on  which  there  is  a  building  or  buildings  having 
rear  yards  less  in  depth  than  would  be  required  under  this  article, 
the  depth  of  the  rear  yard  of  the  proposed  building  shall  not  be  re- 
quired to  be  greater  at  any  given  level  than  the  average  depth  of  the 
rear  yards  directly  back  to  back  with  it  at  such  level,  but  in  no  case 
shall  the  depth  of  such  rear  yard  be  less  at  any  height  than  the  least 
dimension  prescribed  for  an  outer  court  at  such  height. 

SEC.  17.  Courts,  (a.)  If  a  room  in  which  persons  live,  sleep, 
work  or  congregate  receives  its  light  and  air  in  whole  or  in  part 
directly  from  an  open  space  on  the  same  lot  with  the  building,  there 
shall  be  at  least  one  inner  court,  outer  court,  side  yard  or  rear  yard 
upon  which  a  window  or  ventilating  skylight  opens  from  such  room. 
Such  inner  court,  outer  court  or  side  yard  shall  be  at  least  of  the 
area  and  dimensions  herein  prescribed  for  the  area  district  in  which 
it  is  located.  Such  rear  yard  shall  be  at  least  of  the  area  and  dimen- 
sions herein  prescribed  for  an  inner  court  in  the  area  district  in  which 
it  is  located.  In  an  A  district,  such  inner  court,  outer  court,  side  yard 
or  rear  yard  shall  be  at  least  of  the  area  and  dimensions  herein  pre- 
scribed for  a  court  in  such  district.  The  unoccupied  space  within 
the  lot  in  front  of  every  part  of  such  window  shall  be  not  less  than 
three  feet,  measured  at  right  angles  thereto.  Courts,  yards  and  other 
open  spaces,  if  provided  in  addition  to  those  required  by  this  section, 
need  not  be  of  the  area  and  dimensions  herein  prescribed.  The  pro- 
visions of  this  section  shall  not  be  deemed  to  apply  to  courts  or  shafts 
for  bathrooms,  toilet  compartments,  hallways  or  stairways. 

(&)  The  least  dimension  of  an  outer  court,  inner  court  or  side 
yard  at  its  lowest  level  shall  be  not  less  than  four  feet,  except  that 
where  the  walls  bounding  a  side  yard  within  the  lot  are  not  more  than 
25  feet  in  mean  height  and  not  more  than  40  feet  in  length,  such 
least  dimension,  except  in  an  E  district,  may  be  not  less  than  three 
feet.  Where  any  outer  court  opens  on  a  street  such  street  may  be 
considered  as  part  of  such  court. 

(c)  The  least  dimension  of  an  inner  court  at  any  given  height 
shall  be  not  less  than  that  which  would  be  required  in  inches   for 
each  one  foot  of  height  for  a  rear  yard  of  the  same  height,  except 
that  an  inner  court  of  equivalent  area  may  be  substituted   for  said 
court,  provided  that  for  such  area  its  least  dimension  be  not  less  than 
one-half  of  its  greatest  dimension.    If  an  inner  court  is  connected  with 
a  street  by  a  side  yard  for  each  one  foot  that  such  side  yard  i- 
than  65  feet  in  depth  from  the  street,  one  square  foot  may  be  de- 
ducted  from  the  required  area  of  the  inner  court  for  each   i~ 
of  height  of  such  court.    If  the  lot  is  not  required  under  this  resolu- 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         319 

tion  to  have  a  rear  yard,  an  outer  court,  not  opening  on  a  street, 
shall  open  at  any  level  on  an  inner  court  on  the  rear  line  of  the  lot 
and  such  inner  court  shall  be  deemed  a  rear  yard  in  such  case. 

SEC.  18.  Area  District  Exceptions,  (a)  The  area  required  in 
a  court  or  yard  at  any  given  level  shall  be  open  from  such  level  to  the 
sky  unobstructed,  except  for  the  ordinary  projections  of  skylights  and 
parapets  above  the  bottom  of  such  court  or  yard,  and  except  for  the 
ordinary  projections  of  window  sills,  belt  courses,  cornices  and  other 
ornamental  features  to  the  extent  of  not  more  than  four  inches. 
However,  where  a  side  yard  or  an  outer  court  opens  on  a  street  a 
cornice  may  project  not  over  five  feet  into  such  side  yard  or  outer 
court  within  five  feet  of  the  street  wall  of  the  building.  And  pro- 
vided that  in  an  E  district  a  one-family  residence,  detached  on  all 
sides  and  having  on  one  side  a  side  yard  of  a  clear  and  unobstructed 
width  of  not  less  than  five  feet,  may  have  a  cornice  or  eave  project- 
ing not  more  than  two  feet  six  inches  into  a  side  yard  on  the  opposite 
side.88 

(&)  An  open  or  lattice  enclosed  iron  fire  escape,  fireproof  outside 
stairway  or  solid-floored  balcony  to  a  fire  tower  may  project  not 
more  than  four  feet  into  a  rear  yard  or  an  inner  court,  except  that  an 
open  or  lattice  enclosed  iron  fire  escape  may  project  not  more  than 
eight  feet  into  a  rear  yard  or  into  an  inner  court  when  it  does  not 
not  occupy  more  than  20  per  cent,  of  the  area  of  such  inner  court. 

(c)  A  corner  of  a  court  or  yard  may  be  cut  off  between  walls  of 
the  same  building  provided  that  the  length  of  the  wall  of  such  cut-off 
does  .not  exceed  seven  feet. 

(d)  An  offset  to  a  court  or  yard  may  be  considered  as  a  part  of 
such  court  or  yard  provided  that  it  is  no  deeper  in  any  part  than  it  is 
wide  on  the  open  side  and  that  such  open  side  be  in  no  case  less  than 
six"  feet  wide. 

(e)  If  a  building  is  erected  on  the  same  lot  with  another  build- 
ing the  several  buildings  shall,  for  the  purposes  of  this  article,  be 
considered  as  a  single  building.    Any  structure,  whether  independent 
of  or  attached  to  a  building,  shall  for  the  purposes  of  this  article  be 
deemed  a  building  or  a  part  of  a  building. 

(/)  If  an  additional  story  or  stories  are  added  to  a  building 
existing  at  the  time  of  the  passage  of  this  resolution,  the  courts  and 
yards  of  which  do  not  conform  to  the  requirements  of  this  article, 
the  least  dimensions  of  yards  and  courts  shall  be  increased  from  the 
top  of  the  existing  yard  or  court  walls,  as  though  they  were  of  the 
prescribed  dimensions  at  such  heights  and  the  carrying  up  of  existing 
elevator  and  stair  enclosures  shall  be  exempted  from  the  provisions 
of  this  article. 

58  Par.  a  of  sec.  18,  amended  as  above,  September  21,  1917. 


320  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ARTICLE   V — GENERAL   AND    ADMINISTRATIVE 

SEC.  19.  Interpretation;  Purpose.  In  interpreting  and  applying 
the  provisions  of  this  resolution,  they  shall  be  held  to  be  the  minimum 
requirements  adopted  for  the  promotion  of  the  public  health,  safety, 
comfort,  convenience  and  general  welfare.  It  is  not  intended  by  this 
resolution  to  repeal,  abrogate,  annul  or  in  any  way  to  impair  or 
interfere  with  any  existing  provision  of  law  or  ordinance  or  any 
rules,  regulations  or  permits  previously  adopted  or  issued  or  which 
shall  be  adopted  or  issued  pursuant  to  law  relating  to  the  use  of 
buildings  or  premises;  nor  is  it  intended  by  this  resolution  to  inter- 
fere with  or  abrogate  or  annul  any  easements,  covenants  or  other 
agreements  between  parties ;  provided,  however,  that  where  this  reso- 
lution imposes  a  greater  restriction  upon  the  use  of  buildings  or 
premises  or  upon  height  of  buildings  or  requires  larger  yards,  courts 
or  other  open  spaces  than  are  imposed  or  required  by  such  existing 
provision  of  law  or  ordinance  or  by  such  rules,  regulations  or  permits 
or  by  such  easements,  covenants  or  agreements,  the  provisions  of  this 
resolution  shall  control. 

SEC.  20.  Rules  and  Regulations;  Modifications  of  Provisions. 
The  Board  of  Standards  and  Appeals,  created  by  chapter  503  of  the 
laws  of  1916,  shall  adopt  from  time  to  time  such  rules  and  regulations 
as  they  may  deem  necessary  to  carry  into  effect  the  provisions  of 
this  resolution.  Where  there  are  practical  difficulties  or  unnecessary 
hardships  in  the  way  of  carrying  out  the  strict  letter  of  the  provisions 
of  this  resolution  the  Board  of  Appeals  shall  have  power  in  a  specific 
case  to  vary  any  such  provision  in  harmony  with  its  general  purpose 
and  intent,  so  that  the  public  health,  safety  and  general  welfare  may 
be  secured  and  substantial  justice  done.  Where  the  street  layout 
actually  on  the  ground  varies  from  the  street  layout  as  shown  on  the 
use,  height  or  area  district  map,  the  designation  shown  on  the  mapped 
street  shall  be  applied  by  the  Board  of  Appeals  to  the  unmapped 
streets  in  such  a  way  as  to  carry  out  the  intent  and  purpose  of  the 
plan  for  the  particular  section  in  question.  Before  taking  any  action 
authorized  in  this  section  the  Board  of  Appeals  shall  give  public 
notice  and  hearing. 

No  garage  for  more  than  five  cars  may  be  erected  or  extended 
and  no  building  not  now  used  as  a  garage  for  more  than  five  cars 
may  have  its  use  changed  to  a  garage  for  more  than  five  cars  on  any 
portion  of  a  street  between  two  intersecting  streets  in  which  portion 
there  exists  an  exit  from  or  an  entrance  to  a  public  school;  or  in 
which  portion  there  exists  any  hospital  maintained  as  a  charitable 
institution;  and  in  no  case  within  a  distance  of  200  feet  from  the 
nearest  exit  from  or  entrance  to  a  public  school;  nor  within  two  hun- 
dred fi.-it  i if  any  hospital  maintained  as  a  charitable  institution.  This 
protection  shall  also  annlv  to  duly  organized  schools  for  children 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        321 

under  16  years  of  age,  giving  regular  instruction  at  least  five  days  a 
week  for  eight  months  or  more  each  year,  owned  and  operated  by  any 
established  religious  body  or  educational  corporation.  This  limita- 
tion on  the  location  of  garages  shall  apply  to  unrestricted  as  well  as 
business  and  residence  districts;  but  in  no  case  shall  it  apply  to  cases 
where  applications  for  the  erection  or  extension  of  garages  or  the 
conversion  of  existing  buildings  into  garages  may  be  pending  before 
the  Board  of  Appeals  at  the  time  of  the  adoption  of  this  resolution." 

SEC.  21.  Unlawful  Use;  Certificate  of  Occupancy.  It  shall  be 
unlawful  to  use  or  permit  the  use  of  any  building  or  premises  or  part 
thereof  hereafter  created,  erected,  changed  or  converted  wholly  or 
partly  in  its  use  or  structure  until  a  certificate  of  occupancy  to  the 
effect  that  the  building  or  premises  or  the  part  thereof  so  created, 
erected,  changed  or  converted  and  the  proposed  use  thereof  conform 
to  the  provisions  of  this  resolution  shall  have  been  issued  by  the 
superintendent  of  buildings  of  the  borough  in  which  such  building  or 
premises  is  located,  or,  in  the  case  of  a  tenement  house  as  defined  in 
the  Tenement  House  Law,  by  the  tenement  house  commissioner.  In 
the  case  of  such  buildings  or  premises  it  shall  be  the  duty  of  the 
superintendent  of  buildings  or  the  tenement  house  commissioner,  as 
the  case  may  be,  to  issue  a  certificate  of  occupancy  within  ten  days 
after  a  request  for  the  same  shall  be  filed  in  his  office  by  any  owner 
of  a  building  or  premises  affected  by  this  resolution,  provided  said 
building  or  premises,  or  the  part  thereof  so  created,  erected,  changed 
or  converted,  and  the  proposed  use  thereof,  conforms  with  all  the 
requirements  herein  set  forth.  Under  rules  and  regulations  of  the 
Board  of  Standards  and  Appeals  a  temporary  certificate  of  occupancy 
for  a  part  of  a  building  may  be  issued  by  the  superintendent  of 
buildings  or  the  tenement  house  commissioner  as  the  case  may  be. 
Upon  written  request  from  the  owner,  the  superintendent  of  build- 
ings or  the  tenement  house  commissioner,  as  the  case  may  be,  shall 
issue  a  certificate  of  occupancy  for  any  building  or  premises  existing 
at  the  time  of  the  passage  of  this  resolution  certifying  after  inspec- 
tion the  use  of  the  building  or  premises  and  whether  such  use  con- 
forms to  the  provisions  of  this  resolution. 

SEC.  22.  Enforcement,  Legal  Procedure,  Penalties.  This  resolu- 
tion shall  be  enforced  by  the  tenement  house  commissioner,  the  fire 
commissioner  and  by  the  superintendent  of  buildings  in  each  borough 
under  the  rules  and  regulations  of  the  Board  of  Standards  and  Ap- 
peals. The  tenement  house  commissioner  shall  enforce  the  provisions 
herein  contained  in  so  far  as  they  affect  or  relate  to  tenement  houses 
as  defined  by  the  Tenement  House  Law.  The  superintendent  of  build- 
ings shall  in  each  borough  enforce  the  provisions  herein  contained  in 

89  Final  paragraph  added  to  sec.  20,  June  6,  1919,  and  amended  June 
20,  1919. 


322  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

so  far  as  they  relate  to  buildings  or  premises  other  than  tenement 
houses.  The  fire  commissioner  shall  enforce  the  provisions  herein 
contained  in  so  far  as  they  relate  to  the  use  of  completed  buildings 
or  premises,  or  part  thereof,  other  than  tenement  houses.  For  any 
and  every  violation  of  the  provisions  of  this  resolution  or  of  the 
rules  and  regulations  adopted  thereunder,  the  owner,  general  agent 
or  contractor  of  a  building  or  premises  where  such  violation  has 
been  committed  or  shall  exist,  and  the  lessee  or  tenant  of  an  entire 
building  or  entire  premises  where  such  violation  has  been  committed 
or  shall  exist,  and  the  owner,  general  agent,  contractor,  lessee  or 
tenant  of  any  part  of  a  building  or  premises  in  which  part  such 
violation  has  been  committed  or  shall  exist,  and  the  general  agent, 
architect,  builder,  contractor  or  any  other  person  who  commits,  takes 
part  or  assists  in  such  violation  or  who  maintains  any  building  or 
premises  in  which  any  such  violation  shall  exist,  shall  be  liable  to 
the  same  legal  procedure  and  the  same  penalties  as  are  prescribed  in 
any  law,  statute  or  ordinance  for  violations  of  the  Building  Code,  and 
for  such  violations  the  same  legal  remedies  shall  be  had  and  they  shall 
be  prosecuted  in  the  same  manner  as  prescribed  in  any  law  or  ordi- 
nance in  the  case  of  violations  of  said  Building  Code. 

SEC.  23.  Amendments,  Alterations  and  Changes  in  District  Lines. 
The  Board  of  Estimate  and  Apportionment  may  from  time  to  time 
on  its  own  motion  or  on  petition,  after  public  notice  and  hearing, 
amend,  supplement  or  change  the  regulations  and  districts  herein 
established.  Whenever  the  owners  of  50  per  cent,  or  more  of  the 
frontage  in  any  district  or  part  thereof  shall  present  a  petition  duly 
signed  and  acknowledged  to  the  Board  of  Estimate  and  Apportion- 
ment requesting  an  amendment,  supplement,  change  or  repeal  of  the 
regulations  prescribed  for  such  district  or  part  thereof,  it  shall  be  the 
duty  of  the  Board  to  vote  upon  said  petition  within  90  days  after  the 
filing  of  the  same  by  the  petitioners  with  the  secretary  of  the  Board. 
If,  however,  a  protest  against  such  amendment,  supplement  or  change 
be  presented,  duly  signed  and  acknowledged  by  the  owners  of  20  per 
cent,  or  more  of  any  frontage  proposed  to  be  altered,  or  by  the  owners 
of  20  per  cent,  of  the  frontage  immediately  in  the  rear  thereof,  or 
by  the  owners  of  20  per  cent,  of  the  frontage  directly  opposite  the 
frontage  proposed  to  be  altered,  such  amendment  shall  not  be  passed 
except  by  the  unanimous  vote  of  the  Board.  If  any  area  is  here- 
after transferred  to  another  district  by  a  change  in  district  bound- 
aries by  an  amendment,  as  above  provided,  the  provisions  of  this 
resolution  in  regard  to  buildings  or  premises  existing  at  the  time  of 
the  passage  of  this  resolution  shall  apply  to  buildings  or  premises 
existing  at  the  time  of  passage  of  such  amendment  in  such  trans- 
ferred area. 

SEC.  24.  Completion-  and  Restoration  of  Existing  Buildings,  (a) 
Nothing  herein  contained  shall  require  any  change  in  the  plans,  con- 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         323 

Struction  or  designated  use  of  a  building  for  which  a  building  per- 
mit has  been  heretofore  issued,  or  plans  for  which  are  on  file  with 
the  building  superintendent  or  with  the  tenement  house  department 
at  the  time  of  the  passage  of  this  resolution,  and  a  permit  for  the 
erection  of  which  is  issued  within  three  months  of  the  passage  of 
this  resolution  and  the  construction  of  which,  in  either  case,  shall 
have  been  diligently  prosecuted  within  a  year  of  the  date  of  such 
permit,  and  the  ground  story  framework  of  which,  including  the 
second  tier  of  beams,  shall  have  been  completed  within  such  year, 
and  which  entire  building  shall  be  completed  according  to  such  plans 
as  filed  within  five  years  from  the  date  of  the  passage  of  this  resolu- 
tion. Provided,  however,  that  any  plan,  other  than  a  plan  for  a 
garage  for  more  than  five  motor  vehicles,  filed  with  the  building 
superintendent  or  with  the  tenement  house  department  on  July  26, 
or  July  27,  1916,  and  a  permit  for  the  erection  of  which  is  issued 
prior  to  December  25,  1916,  shall  be  deemed  to  have  been  filed  at  the 
time  of  the  passage  of  this  resolution.  Provided,  also,  that  the  Board 
of  Appeals  may,  after  public  notice  and  hearing,  extend  for  not  to 
exceed  one  year,  or,  in  cases  where  one  such  extension  may  have  been 
granted,  may  further  extend  for  one  year  the  time  within  which  such 
ground-story  framework,  including  the  second  tier  of  beams,  shall  be 
completed  in  any  case,  where,  in  the  judgment  of  said  Board,  actual 
construction  or  fabrication  was  begun  early  enough  to  allow  under 
the  then  existing  conditions  adequate  time  for  completion  as  above 
specified,  and  where  such  construction  or  fabrication  was  diligently 
prosecuted  and  where  such  completion  has  been  prevented  by  condi- 
tions impossible  to  foresee  and  beyond  the  control  of  the  owner  and 
builder.80 

(b)  Nothing  in  this  resolution  shall  prevent  the  restoration  of  a 
building  wholly  or  partly  destroyed  by  fire,  explosion,  act  of  God  or 
act  of  the  public  enemy  or  prevent  the  continuance  of  the  use  of 
such  building  or  part  thereof  as  such  use  existed  at  the  time  of  such 
destruction  of  such  building  or  part  thereof  or  prevent  a  change  of 
such  existing  use  under  the  limitations  provided  in  section  6.  Noth- 
ing in  this  resolution  shall  prevent  the  restoration  of  a  wall  declared 
unsafe  by  the  superintendent  of  buildings  or  by  a  board  of  survey. 

SEC.  25.  When  Effective.  This  resolution  shall  take  effect  imme- 
diately. 

No.  7.     THE  MILWAUKEE,  WISCONSIN,  ORDINANCE 

120 — AN  ORDINANCE 

To  create  Sections  26.3  to  26.77  of  the  Milwaukee  Code  of  1914, 
constituting  Chapter  Ill-a  thereof,  regulating  and  restricting  the 

80  Par.  a  of  sec.  24,  amended  as  above,  December  15,  1916,  October  19, 
1917,  and  April  25,  1919. 


324          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

location  of  trades  and  industries  and  the  location  of  buildings  designed 
for  specified  uses,  and  regulating  and  limiting  the  height  and  bulk  of 
buildings  hereafter  erected,  and  regulating  and  determining  the  area 
of  yards,  courts  and  other  open  spaces  surrounding  buildings,  and 
establishing  the  boundaries  for  the  said  purposes. 

The  Mayor  and  the  Common  Council  of  the  City  of  Milwaukee  do 
ordain  as  follows: 

SEC.  i.  There  are  added  to  the  Milwaukee  Code  of  1914  twenty- 
eight  (28)  new  sections  constituting  Chapter  Ill-a  thereof  to  read: 

CHAPTER    III-A 
BUILDING  ZONES 

Article  I.    Definitions 

SEC.  26.3.     Certain  words  in  this  chapter  are  defined  as  follows: 

Words  used  in  the  present  tense  include  the  future;  the  singular 
number  includes  the  plural  and  the  plural  the  singular;  the  word  lot 
includes  the  word  plot;  the  word  building  includes  the  word  structure. 

Private  Garage.  A  private  garage  is  a  garage  for  not  more  than 
four  automobiles,  for  storage  only,  and  intended  for  private  use,  but 
in  which  space  may  be  rented  for  storage  only  of  not  more  than  two 
non-commercial  automobiles  by  others  than  the  occupants  of  the  build- 
ing to  which  such  garage  is  accessory. 

Non-conforming  Building  or  Use.  A  non-conforming  building  or 
use  is  one  that  does  not  conform  with  the  regulations  of  a  given  use 
district. 

Lot.  A  lot  is  a  parcel  of  land  in  a  single  ownership  occupied  by 
not  more  than  one  building  and  the  accessory  buildings  or  uses  cus- 
tomarily incident  to  it,  including  such  open  spaces  as  are  required  by 
this  chapter. 

Corner  Lot.  A  corner  lot  is  a  lot  or  portion  of  a  lot  not  more 
than  fifty  feet  wide  at  the  junction  of  and  fronting  on  two  intersect- 
ing streets.  Any  portion  of  a  lot  more  than  fifty  feet  distant  from 
that  street  with  the  greater  frontage  shall  comply  with  all  the  pro- 
visions of  this  chapter  respecting  interior  lots. 

Interior  Lot.    An  interior  lot  is  a  lot  other  than  a  corner  lot. 

Depth  of  Lot.  The  depth  of  a  lot  is  the  mean  distance  from  the 
street  line  of  the  lot  to  its  rear  line  measured  in  the  general  direction 
of  the  side  lines  of  the  lot. 

Street  Line.  The  street  line  is  the  dividing  line  between  the 
street  and  the  lot. 

Rear  Yard.  A  rear  yard  is  an  open,  unoccupied  space  on  the  sann- 
lot  with  a  building  between  the  rear  line  of  the  building  and  the  rear 
line  of  the  lot  unobstructed  to  the  sky. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         325 

Side  Yard.  A  side  yard  is  an  open  unoccupied  space  on  the  same 
lot  with  a  building  situated  between  the  building  and  the  side  line  of 
the  lot  and  extending  through  from  the  street  to  the  rear  yard,  or 
where  no  rear  yard  is  required,  to  the  rear  line  of  the  lot. 

Outer  Court.  An  outer  court  is  an  open,  unoccupied  space  other 
than  a  yard  on  the  same  lot  with  a  building  extending  to  either  the 
street,  alley  or  the  rear  yard. 

Inner  Court.  An  inner  court  is  an  open,  unoccupied  space  on  the 
same  lot  with  a  building  not  extending  to  either  the  street,  alley  or 
the  rear  yard. 

Width  of  a  Yard  or  Court.  The  width  of  a  yard  or  court  is  its 
least  horizontal  dimension  at  its  lowest  level. 

Length  of  an  Outer  Court.  The  length  of  an  outer  court  is  the 
horizontal  distance  between  the  end  opening  on  a  street  or  rear  yard 
and  the  end  opposite  such  street  or  rear  yard. 

Height  of  a  Yard  or  Court.  The  height  of  a  yard  or  court  is  the 
vertical  distance  from  the  lowest  level  of  such  yard  or  court  to  the 
highest  point  of  any  bounding  wall. 

Half  Story.  A  half  story  is  a  story  which  is  situated  in  a  sloping 
roof,  the  floor  area  of  wThich  does  not  exceed  two-thirds  of  the  floor 
area  of  the  story  immediately  below  it  and  which  does  not  contain  an 
independent  apartment. 

Building  Area.  The  building  area  is  the  maximum  horizontal  pro- 
jected area  of  a  building  and  its  accessories. 

Definition  of  Other  Words  as  in  Chapter  IV.  Any  words  not 
defined  herein  shall  be  construed  as  defined  or  construed  in  Chapter 
IV,  Milwaukee  Code  of  1914. 

Article  2.     Use  Districts 

SEC.  26.4.  Establishment  of  Use  Districts.  For  the  purpose  of 
regulating  and  restricting  the  location  of  trades  and  industries  and 
the  location  of  buildings  designed  for  specified  purposes,  the  City  of 
Milwaukee  is  hereby  divided  into  four  classes  of  districts;  residence 
districts ;  local  business  districts ;  commercial  and  light  manufacturing 
districts;  and  industrial  districts;  as  shown  on  the  use  district  map 
which  accompanies  this  chapter  and  is  hereby  declared  to  be  part 
hereof.  The  use  districts  designated  on  said  map  are  hereby  estab- 
lished. The  use  district  designations  which  accompany  said  use  dis- 
trict map  are  hereby  declared  to  be  part  thereof.  No  building,  struc- 
ture or  premises  shall  be  erected  or  used  for  any  purpose  other  than 
a  purpose  permitted  in  the  use  district  in  which  such  building,  struc- 
ture or  premises  is  located. 

SEC.  26.41.  Uses  Permitted  in  Residence  Districts.  In  a  residence 
district  no  building,  structure  or  premises  shall  be  used  and  no  build- 
ing or  structure  shall  be  erected  which  is  arranged,  intended  or  de- 


326  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

signed  to  be  used  except  for  one  or  more  of  the  following  specified 
uses: 

1.  Single  family  dwellings,  two  family  dwellings,  apartment  or 
tenement  houses. 

2.  Lodging  or  boarding  houses,  dormitories  or  convents. 

3.  Hotels. 

4.  Clubs,  excepting  clubs  the  chief  activity  of  which  is  a  service 
customarily  carried  on  as  a  business. 

5.  Churches. 

6.  Schools,  colleges,  libraries  or  public  museums. 

7.  Philanthropic  and  eleemosynary  uses  or  institutions,  other  than 
correctional  institutions. 

8.  Hospitals  or  sanitaria. 

9.  Railroad  passenger  stations. 

10.  Farming,  truck  gardening,  nurseries  or  greenhouses. 

11.  Accessory  uses  customarily  incident  to  the  above  uses.     The 
term  accessory  use  shall  not  include — 

a.  A  business  outside  the  building  to  which  it  is  accessory,  or 
which  occupies  a  total  floor  area  in  excess  of  25%  of  the  floor  area 
of  one  story  of  such  building,  or  which  by  reason  of  the  appearance 
of  the  building  or  premises,  or  the  emission  of  odor,  smoke,  dust  or 
noise  or  in  any  other  way  is  objectionable  or  detrimental  to  the  resi- 
dential character  of  the  neighborhood,  or  which  involves  features  in 
design  not  customary  in  buildings  for  the  above  uses  or  any  struc- 
tural alteration  of  the  building. 

b.  A  garage  other  than  a  private  garage  on  a  lot  occupied  by  not 
more  than  two  families. 

c.  A  group  of  private  garages  for  more  than  four  automobiles. 

d.  The  storage  of  not  more  than  one  commercial  vehicle. 

12.  Telephone  central  offices. 

13.  In  undeveloped  sections  of  the  city  a  temporary  building  or 
use  incidental  to  the  residential  development  erected  and  so  used  for 
a  period  of  two  years  from  the  date  of  the  permit. 

SEC.  26.42.  Uses  Prohibited  in  Local  Business  Districts.  In  a 
local  business  district  no  building  or  premises  shall  be  used,  and  no 
building  shall  be  erected  which  is  arranged,  intended  or  designed  to 
be  used  for  any  of  the  following  specified  trades,  industries  or  uses: 

1.  Any  kind  of  manufacturing  other  than  the  manufacturing  of 
products  the  major  portion  of  which  are  to  be  sold  at  retail  on  the 
premises  to  the  ultimate  consumer. 

2.  A  blacksmith  shop  or  horseshoeing  establishment. 

3.  A  milk  bottling  or  distributing  station. 

4.  A  carpet  or  bag  cleaning  establishment. 

5.  A  coal  yard  or  lumber  yard. 

6.  Any  trade,  industry  or  use  prohibited  by  Section  26.43  'n  a 
commercial  and  light  manufacturing  district. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         327 

No  use  permitted  in  a  residence  district  by  Section  26.41  shall  be 
excluded  from  a  local  business  district. 

SEC.  26.43.  Uses  Prohibited  in  Commercial  and  Light  Manufac- 
turing Districts.  In  a  commercial  and  light  manufacturing  district 
no  building  or  premises  shall  be  used,  and  no  building  shall  be  erected 
which  is  arranged,  intended  or  designed  to  be  used  for  any  of  the 
following  specified  trades,  industries  or  uses:*1 

45.  Any  other  trade,  industry  or  use  that  is  noxious  or  offensive 
by  reason  of  the  emission  of  odor,  dust,  smoke,  gas  or  noise,  but  car 
barns  or  places  of  amusement  shall  not  be  excluded. 

No  use  permitted  in  a  residence  district  by  Section  26.41  or  in  a 
local  business  district  by  Section  26.42  shall  be  excluded  from  a  com- 
mercial and  light  manufacturing  district. 

SEC.  26.44.  Uses  Prohibited  in  Industrial  Districts.  In  an  indus- 
trial district  no  building  shall  be  used,  and  no  building  shall  be  erected 
which  is  arranged,  intended  or  designed  to  be  used  in  whole  or  in 
part  as  a  dwelling  or  tenement  for  one  or  more  families.  This  pro- 
vision shall,  however,  not  prohibit  the  erection  and  maintenance  of 
dwelling  quarters  in  connection  with  any  industrial  establishment  for 
watchmen  employed  upon  the  premises,  nor  of  dwellings  in  unde- 
veloped sections  for  a  period  of  five  years  from  the  date  of  the  permit. 
No  other  use  permitted  in  a  residence,  local  business  or  commercial 
and  light  manufacturing  district  shall  be  excluded  from  an  industrial 
district. 

SEC.  26.45.  Exceptions  as  to  Existing  Buildings  and  Uses.  Any 
non-conforming  use  existing  at  the  time  of  the  passage  of  this  chapter 
may  be  continued  and  any  existing  building  designed,  arranged,  in- 
tended or  devoted  to  a  non-conforming  use  may  be  reconstructed  or 
structurally  altered,  and  the  non-conforming  use  therein  changed 
subject  to  the  following  regulations: 

1.  The  structural  alterations  made  in  such  a  building  shall  not 
during  its  life  exceed  fifty  per  cent  of  its  assessed  value,  nor  shall 
the  building  be  enlarged,  unless  the  use  therein  is  changed  to  a  con- 
forming use. 

2.  No  non-conforming  use  shall  be  extended  by  displacing  a  con- 
forming use. 

3.  In  a  residence  district  no  building  or  premises  devoted  to  a 
use  permitted  in  a  local  business  district  shall  be  changed  into  a  use 
not  permitted  in  a  local  business  district. 

4.  In  a  residence  or  local  business  district  no  building  or  premises 
devoted  to  a  use  permitted  in  a  commercial  and  light  manufacturing 
district  shall  be  changed  into  a  use  not  permitted  in  a  commercial  and 
light  manufacturing  district. 

5.  In  a  residence,  local  business  or  commercial  and  light  manu- 

81  The  lists  of  industries  pars.  1-44  is  omitted.  See  the  list  given  in  thq 
New  York  City  resolution,  p.  308  of  this  work  and  note  to  same. 


328  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

facturing  district  no  building  devoted  to  a  use  excluded  from  a  com- 
mercial and  light  manufacturing  district  shall  be  structurally  altered 
if  its  use  shall  have  been  changed  since  the  time  of  the  passage  of 
this  chapter  to  another  use  also  excluded  from  a  commercial  and 
light  manufacturing  district.  A  change  of  use  for  the  purpose  of 
this  subdivision  shall  be  deemed  to  include  any  change  from  a  use 
included  in  an  enumerated  subdivision  of  Section  26.43  to  a  use 
included  in  another  enumerated  subdivision  of  Section  26.43. 

6.  In  a  residence,  local  business  or  commercial  and  light  manu- 
facturing district  no  building  devoted  to  a  use  excluded  from  a  com- 
mercial and  light  manufacturing  district  shall  have  its  use  changed 
to  another  use  which  is  also  excluded  from  a  commercial  and  light 
manufacturing  district  if  the  building  shall  have  been  structurally 
altered  since  the  time  of  the  passage  of  this  chapter.  A  change  of 
use  for  the  purpose  of  this  subdivision  shall  be  deemed  to  include  any 
change  from  a  use  included  in  an  enumerated  subdivision  of  Section 
26.43  to  a  use  included  in  another  enumerated  subdivision  of  Section 

26.43- 

SEC.  26.46.  Public  Service  Corporation  Uses.  A  structure  or 
premises  may  be  erected  or  used  in  any  location  by  a  public  service 
corporation  for  any  purpose  which  the  railroad  commission  decides  is 
reasonably  necessary  for  the  public  convenience  or  welfare. 

Article  3.    Height  Districts 

SEC.  26.5.  Establishment  of  Height  Districts.  For  the  purpose 
of  regulating  and  limiting  the  height  and  bulk  of  buildings  hereafter 
erected,  the  City  of  Milwaukee  is  hereby  divided  into  four  classes  of 
districts ;  one  hundred  and  twenty-five  foot  districts ;  eighty-five  foot 
districts;  sixty  foot  districts;  and  forty  foot  districts;  as  shown  on 
the  height  district  map  which  accompanies  this  ordinance  and  is 
hereby  declared  to  be  part  hereof.  The  height  districts  designated 
on  said  map  are  hereby  established.  The  height  district  map  designa- 
tions which  accompany  said  height  district  map  are  hereby  declared 
to  be  part  thereof.  No  building  or  part  of  a  building  shall  be  erected 
except  in  conformity  with  the  regulations  herein  prescribed  for  the 
height  district  in  which  such  building  is  located. 

SEC.  26.51.  Height  Limitations  in  One  Hundred  and  Twenty- fire 
Foot  Districts.  In  a  one  hundred  and  twenty-five  foot  district  no 
building  shall  be  erected  to  a  height  in  excess  of  one  hundred  and 
twenty-five  feet,  and  no  buildings  used  in  any  part  for  residence 
purposes  shall  be  in  excess  of  eight  stories;  but  nothing  in  this  sec- 
tion shall  prevent  the  erection  on  a  business  building  of  a  tower,  to 
a  height  of  two  hundred  and  twenty-five  feet,  provided :  (  i  )  that 
the  area  of  such  tower  above  the  general  height  limit  fixed  for  build- 
ings by  the  preceding  section  shall  not  be  in  excess  of  twenty-five  per 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        320 

cent  of  the  area  of  the  building;  and  (2)  that  an  open  space  shall  be 
left  above  the  general  height  limit  fixed  for  buildings  by  this  section 
on  each  and  every  lot  line  which  is  not  also  a  street  line,  such  open 
space  being  at  least  of  the  minimum  dimensions  prescribed  by  Sec- 
tion 26.61  for  a  side  yard  in  an  A  area  district  for  a  building  having 
a  height  equal  to  the  maximum  height  of  the  tower  above  the  curb 
level. 

SEC.  26.52.  Height  Limitations  in  Eighty-five  Foot  Districts.  In 
an  eighty-five  foot  district  no  building  shall  be  erected  to  a  height  in 
excess  of  eighty-five  feet,  and  no  building  used  in  any  part  for  resi- 
dence purposes  shall  be  in  excess  of  six  stories. 

SEC.  26.53.  Height  Limitations  in  Sixty  Foot  Districts.  In  a 
sixty  foot  district  no  building  shall  be  erected  to  a  height  in  excess 
of  sixty  feet,  and  no  building  used  in  any  part  for  residence  purposes 
shall  be  in  excess  of  four  stories. 

SEC.  26.54.  Height  Limitations  in  Forty  Foot  Districts.  In  a 
forty  foot  district  no  building,  except  as  hereinafter  provided  for, 
shall  be  erected  to  a  height  in  excess  of  forty  feet,  and  no  building 
used  in  any  part  for  residence  purposes  by  more  than  one  family 
shall  be  in  excess  of  two  and  one-half  stories;  provided,  however, 
that  in  a  local  business  district  where  a  building  is  used  for  business 
purposes  only,  this  height  may  be  increased  by  not  to  exceed  ten  feet. 

A  building  used  as  a  single  family  residence,  erected  on  a  lot  pro- 
viding a  side  yard  of  forty  feet  in  width  on  each  side  of  said  build- 
ing, may  be  erected  to  a  height  of  forty-five  feet. 

SEC.  26.55.  Exceptions  to  Height  Limitations.  The  provisions 
of  this  article  shall  not  apply  to  the  erection  of  the  following  struc- 
tures : 

1.  Chimneys,  flues,  grain  elevators  or  gas  holders. 

2.  Water  towers  or  tanks  other  than  those  located  on  the  roof  of 
a  building. 

3.  Bulkheads,  elevator  inclosures,  towers,  monitors,  penthouses, 
skylights  or  water  tanks  occupying  in  the  aggregate  less  than  twenty- 
five  per  cent  of  the  area  of  the  roof  on  which  they  are  located. 

4.  Parapet  walls  or  cornices  extending  above  the  height  limit 
not  more  than  five  feet. 

5.  Monuments,  towers,  spires,  church  roofs,  domes,   cupolas  or 
belfries  for  ornamental  purposes  and  not  used  for  human  occupancy. 

6.  Churches,    convents,    schools,    dormitories,    colleges,    libraries, 
public  museums,  hospitals  and  sanitaria  in  a  forty  or  sixty  foot  height 
district;  provided,  however,  that  such  buildings  or  portions  thereof 
exceeding  the  height  limit  of  the  district  be  set  back  from  lot  lines 
a  distance  equal  to  ^  the  height  of  such  building  or  portion  thereof 
and  also  be  set  back  from  the  street  or  alley  lines  a  distance  equal  to 
l/2  the  height  of  such  building  or  portion  thereof  less  10  feet. 

7.  Structures  erected  prior  to  the  passage  of  this  chapter,  the 


330          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

foundations  of  which  have  been  completed  and  which  were  designed 
to  carry  structures  above  the  height  provided  herein,  shall  not  exceed 
the  height  provided  for  in  the  design  of  the  foundation  and  in  no 
event  shall  exceed  the  185  ft.  height,  provided,  however,  that  such 
structures  shall  be  completed  within  five  (5)  years  from  the  date  of 
the  passage  and  publication  of  this  chapter. 

Article  4.    Area  Districts 

SEC.  26.6.  Establishment  of  Area  Districts.  For  the  purpose  of 
regulating  and  determining  the  area  of  yards,  courts  and  other  open 
spaces  for  buildings  hereafter  erected,  the  City  of  Milwaukee  is 
hereby  divided  into  four  classes  of  area  districts :  A,  B,  C  and  D ; 
as  shown  on  the  area  district  map  which  accompanies  this  chapter 
and  is  hereby  declared  to  be  part  hereof.  The  area  districts  desig- 
nated on  said  map  are  hereby  established.  The  area  district  map 
designations  which  accompany  said  area  district  map  are  hereby 
declared  to  be  a  part  thereof.  No  building  or  part  of  a  building  shall 
be  erected  and  no  existing  building  shall  be  altered,  enlarged  or 
rebuilt  except  in  conformity  with  the  regulations  herein  prescribed 
for  the  area  district  in  which  such  building  is  located. 

Required  Yards  and  Courts.  Every  room  in  which  one  or  more 
persons  live,  sleep,  work  or  congregate,  except  storage  rooms  or  other 
rooms  where  the  nature  of  the  occupancy  does  not  require  direct 
light  and  air  from  the  outside,  shall  have  a  window  area  equal  to 
one-tenth  of  the  floor  area  of  the  room.  Such  windows  and  others 
which  are  required  by  the  building  code  shall  open  directly  either 
upon  a  street  or  alley  or  upon  a  rear  yard,  side  yard,  outer  court  or 
inner  court  located  upon  the  same  lot  and  conforming  to  the  require- 
ments prescribed  by  this  article  as  to  its  minimum  area  and  least 
dimensions. 

Yards  and  Courts,  When  Not  Required.  The  provisions  of  this 
article  shall  not  be  deemed  to  apply  to  courts  or  shafts  for  bathrooms, 
toilet  compartments,  hallways  or  stairways,  nor  shall  they  apply  to 
yards  and  courts  which  may  be  provided  in  addition  to  those  re- 
quired by  this  article. 

No  Reduction  of  Yards  or  Courts  Allowed.  No  lot  area  shall  at 
any  time  be  so  reduced  or  diminished  that  the  yards,  courts  or  open 
spaces  shall  be  smaller  than  prescribed  by  this  article. 

SEC.  26.61.  Regulations  in  A  Districts.  The  following  regula- 
tions shall  apply  to  A  Districts: 

Rear  Yards.  No  rear  yard  shall  be  less  than  ten  feet  wide  on  an 
interior  lot,  nor  less  than  five  feet  wide  on  a  corner  lot  for  a  building 
two  stories  or  less  in  height.  At  each  additional  story  height  the 
width  of  such  rear  yard  shall  be  increased  one  foot. 

Side  Yards.    No  side  yard  shall  be  less  than  three  feet  wide  for  a 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         331 

building  two  stories  or  less  in  height  and  eighty  feet  or  less  in  length. 
At  each  additional  story  height  the  width  of  such  side  yard  shall  be 
increased  one  foot,  and  for  any  additional  length  the  width  of  such 
side  yard  shall  be  further  increased  at  the  rate  of  one  foot  in  twenty 
feet. 

Outer  Courts.  No  outer  lot-line  court  shall  be  less  than  three  feet 
wide  for  a  court  two  stories  or  less  in  height  and  forty  feet  or  less 
in  length.  At  each  additional  story  height  the  width  of  such  court 
shall  be  increased  one  foot,  and  for  any  additional  length  the  width 
of  such  court  shall  be  further  increased  at  the  rate  of  one  foot  in 
fifteen  feet. 

No  outer  court  not  on  a  lot  line  shall  be  less  than  six  feet  wide  for 
a  court  two  stories  or  less  in  height  and  forty  feet  or  less  in  length. 
At  each  additional  story  height  the  width  of  such  court  shall  be 
increased  one  foot,  and  for  any  additional  length  the  width  of  such 
court  shall  be  further  increased  at  the  rate  of  one  foot  in  ten  feet. 

Inner  Courts.  No  inner  lot-line  court  shall  be  less  than  six  feet  in 
width  nor  less  than  sixty  square  feet  in  area  for  courts  two  stories 
or  less  in  height,  except  that  an  inner  lot-line  court  one  story  high 
shall  be  not  less  than  four  feet  wide  and  not  less  than  forty  square 
feet  in  area.  At  each  additional  story  height  every  such  court  shall 
be  increased  by  at  least  one  lineal  foot  in  its  length  and  one  lineal 
foot  in  its  width. 

No  inner  court  not  on  a  lot  line  shall  be  less  than  ten  feet  in  width 
nor  less  than  one  hundred  and  fifty  square  feet  in  area  for  courts  two 
stories  or  less  in  height.  At  each  additional  story  height  every  such 
court  shall  be  increased  by  at  least  one  lineal  foot  in  its  length  and 
one  lineal  foot  in  its  width. 

Exceptions.  Any  building  erected  or  used  in  any  part  for  resi- 
dence purposes  shall  be  erected  in  conformity  with  the  provisions  pre- 
scrihjpd  by  Section  26.62  for  B  districts,  and  as  provided  for  in  Sec- 
tion 26.65. 

SEC.  26.62.  Regulations  in  B  Districts.  The  following  regula- 
tions shall  apply  in  B  Districts: 

Rear  Yards.  No  rear  yard  shall  be  less  than  fifteen  feet  wide  on 
an  interior  lot  nor  less  than  ten  feet  wide  on  a  corner  lot  for  a  build- 
ing two  stories  or  less  in  height.  At  each  additional  story  height  the 
width  of  such  rear  yard  shall  be  increased  one  and  one-half  feet. 

Side  Yards.  No  side  yard  shall  be  less  than  four  feet  wide  for  a 
building  two  stories  or  less  in  height  and  sixty  feet  or  less  in  length. 
At  each  additional  story  height  the  width  of  such  side  yard  shall  be 
increased  one  foot,  and  for  any  additional  length  the  width  of  such 
side  yard  shall  be  further  increased  at  the  rate  of  one  foot  in  fifteen 
feet.  On  a  lot  improved  with  two  side  yards  if  the  southerly  or 
easterly  of  such  yards  exceeds  the  width  required  by  this  paragraph 
by  one  foot  the  other  side  yard  may  be  reduced  in  width  one  foot. 


332          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Outer  Courts.  No  outer  lot-line  court  shall  be  less  than  five  feet 
wide  for  a  court  two  stories  or  less  in  height  and  thirty  feet  or  less 
in  length.  At  each  additional  story  height  the  width  of  such  court 
shall  be  increased  one  foot,  and  for  any  additional  length  the  width 
of  such  court  shall  be  further  increased  at  the  rate  of  one  foot  in 
ten  feet. 

No  outer  court  not  on  a  lot  line  shall  be  less  than  eight  feet  wide 
for  a  court  two  stories  or  less  in  height  and  thirty  feet  or  less  in 
length.  At  each  additional  story  height  the  width  of  such  court  shall 
be  increased  one  foot,  and  for  any  additional  length  the  width  of  such 
court  shall  be  further  increased  at  the  rate  of  one  foot  in  eight  feet. 

Inner  Courts.  No  inner  lot-line  court  shall  be  less  than  six  feet  in 
width  nor  less  than  sixty  square  feet  in  area  for  courts  two  stories  or 
less  in  height.  At  each  additional  story  height  every  such  court  shall 
be  increased  by  at  least  one  and  one-half  lineal  feet  in  its  length  and 
one  lineal  foot  in  its  width. 

No  inner  court  not  on  a  lot  line  shall  be  less  than  ten  feet  in  width 
nor  less  than  one  hundred  and  fifty  square  feet  in  area  for  courts 
two  stories  or  less  in  height.  At  each  additional  story  height  every 
such  court  shall  be  increased  by  at  least  two  lineal  feet  in  its  length 
and  one  and  one-half  lineal  feet  in  its  width. 

Setbacks.  Setbacks  are  required  and  shall  conform  to  the  regula- 
tions prescribed  by  Section  26.63  f°r  setbacks  in  'C'  Districts. 

Building  Area.  No  building  shall  occupy  more  than  seventy  per 
cent  of  the  area  of  an  interior  lot,  nor  more  than  eighty-five  per  cent 
of  a  corner  lot. 

Exceptions.    For  exceptions  see  Section  26.65. 

SEC.  26.63.  Regulations  in  C  Districts.  The  following  regula- 
tions shall  apply  in  C  Districts: 

Rear  Yards.  No  rear  yard  shall  be  less  than  twenty  feet  wide  on 
an  interior  lot  nor  less  than  ten  feet  wide  on  a  corner  lot  for  a  build- 
ing two  stories  or  less  in  height.  For  each  additional  story  in  height 
the  width  of  such  rear  yard  shall  be  increased  three  feet. 

Side  Yards.  No  side  yard  shall  be  less  than  five  feet  wide  for  a 
building  two  stories  or  less  in  height  and  fifty  feet  or  less  in  length. 
For  each  additional  story  in  height  the  width  of  such  side  yard  shall 
be  increased  one  and  one-half  feet,  and  for  any  additional  length  the 
width  of  such  side  yard  shall  be  further  increased  at  the  rate  of 
one  foot  in  ten  feet.  On  a  lot  improved  with  two  side  yards  for  i-ach 
foot  that  the  southerly  or  easterly  of  such  side  yards  exceeds  the 
width  required  by  this  paragraph  the  other  side  yard  may  be  minced 
one  foot,  but  in  no  case  shall  such  side  yard  be  less  than  three  feet 
wide.  On  a  lot  having  a  width  of  less  than  thirty -three  and  one-half 
feet  at  the  time  it  is  placed  in  a  C  District  and  improved  with  two 
side  yards  the  width  of  each  of  such  yards  may  be  reduced  one  foot. 
On  a  vacant  lot  or  on  two  adjacent  vacant  lots  having  a  width  of 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         333 

thirty  (30)  feet  or  less,  at  the  time  they  are  placed  in  a  C  District 
and  adjacent  lots  on  both  sides  of  such  lots  are  thirty  (30)  feet 
wide  or  less  with  buildings  already  erected  upon  them  which  buildings 
are  so  located  on  the  respective  lots  as  to  leave  a  side  yard  on  the 
north  or  west  side  of  such  buildings  of  at  least  eighteen  (18)  inches 
and  on  the  south  or  east  side  of  such  buildings  of  at  least  four  (4) 
feet,  the  improvements  upon  such  vacant  lots  may  be  so  placed  so  as 
to  leave  a  side  yard  on  the  north  or  west  side  of  not  less  than  eigh- 
teen (18)  inches  and  on  the  south  or  east  side  of  not  less  than  four 
(4)  feet. 

Outer  Courts.  No  outer  lot-line  court  shall  be  less  than  seven  feet 
wide  for  a  court  two  stories  or  less  in  height  and  thirty  feet  or  less 
in  length.  For  each  additional  story  in  height  the  width  of  such 
court  shall  be  increased  one  and  one-half  feet,  and  for  any  additional 
length  the  width  of  such  court  shall  be  further  increased  at  the  rate 
of  one  foot  in  eight  feet. 

No  outer  court  not  on  a  lot  line  shall  be  less  than  ten  feet  wide 
for  a  court  two  stories  or  less  in  height  and  thirty  feet  or  less  in 
length.  For  each  additional  story  in  height  the  width  of  such  court 
shall  be  increased  two  feet,  and  for  any  additional  length  the  width 
of  such  court  shall  be  further  increased  at  the  rate  of  one  foot  in 
six  feet. 

Inner  Courts.  No  inner  lot-line  court  shall  be  less  than  eight  feet 
in  width  nor  less  than  one  hundred  square  feet  in  area  for  courts  two 
stories  or  less  in  height.  For  each  additional  story  in  height  every 
such  court  shall  be  increased  by  at  least  three  lineal  feet  in  its  length 
and  two  lineal  feet  in  its  width. 

No  inner  court  not  on  a  lot  line  shall  be  less  than  fourteen  feet  in 
its  width  nor  less  than  two  hundred  and  eighty  square  feet  in  area 
for' courts  two  stories  or  less  in  height.  For  each  addifional  story 
in  height  every  such  court  shall  be  increased  by  at  least  four  lineal 
feet  in  its  length  and  three  lineal  feet  in  its  width. 

Setbacks.  Where  in  a  residence  district  as  designated  on  the  use 
district  map  at  least  one-quarter  of  the  frontage  oh  either  side  of  a 
street  between  two  intersecting  streets  is  improved  with  buildings  and 
at  least  one-half  of  the  buildings  so  situated  conform  to  a  minimum 
setback  line  no  new  building  shall  be  erected  and  no  existing  build- 
ing shall  be  reconstructed  or  altered  to  project  beyond  such  setback 
line  unless  an  open  space  be  left  on  each  side  of  the  building  beyond 
such  setback  line.  Each  of  these  open  spaces  shall  have  at  every 
point  a  minimum  width,  in  addition  to  the  width  of  any  prescribed 
yards  or  courts,  equal  to  at  least  twice  the  number  of  feet  that  such 
point  projects  beyond  such  setback  line,  provided  that  on  a  lot  between 
and  adjoining  two  lots,  each  with  a  building  projecting  beyond  such 
setback  line,  those  portions  of  such  open  spaces  that  are  back  of  the* 
front  line  of  the  building  with  the  lesser  projection  may  be  omitted; 


334          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Building  Area.  No  building  shall  occupy  more  than  fifty  per  cent 
of  the  area  of  an  interior  lot,  nor  more  than  sixty  per  cent  of  a  corner 
lot,  provided  that  when  a  building  is  used  for  business  purposes  only, 
no  building  shall  occupy  more  than  seventy  (70)  per  cent  of  the  area 
of  an  interior  lot,  nor  more  than  eighty-five  (85)  per  cent  of  a  corner 
lot. 

Number  of  Families  Housed.  No  dwelling  or  apartment  house 
shall  hereafter  be  erected  or  altered  to  accommodate  or  make  pro- 
vision for  more  than  fifty  families  on  any  acre  of  land  nor  more  than 
a  proportional  number  of  families  on  a  fractional  part  of  any  acre  of 
land,  provided,  however,  in  a  local  business  district  not  more  than 
twenty  families  per  acre  may  be  housed.  The  maximum  number  of 
families  which  may  hereafter  be  housed  on  any  plot  of  ground  shall 
not  exceed  the  integral  number  obtained  by  multiplying  the  acreage 
of  such  plot,  exclusive  of  the  area  within  street  lines,  by  fifty,  or  in  a 
local  business  district  by  twenty. 

Exceptions.    For  exceptions  see  Section  26.65. 

SEC.  26.64.  Regulations  in  D  Districts.  The  following  regula- 
tions shall  apply  to  D  Districts: 

Rear  Yards.  No  rear  yard  shall  be  less  than  twenty-five  feet  wide 
on  an  interior  lot  nor  less  than  ten  feet  wide  on  a  corner  lot  for  a 
building  two  stories  or  less  in  height.  For  each  additional  story  in 
height  the  width  of  such  rear  yard  shall  be  increased  six  feet. 

Side  Yards.  No  side  yard  shall  be  less  than  six  feet  wide  for  a 
building  two  stories  or  less  in  height  and  fifty  feet  or  less  in  length. 
For  each  additional  story  in  height  the  width  of  such  side  yard  shall 
be  increased  three  feet,  and  for  any  additional  length  the  width  of 
such  side  yard  shall  be  further  increased  at  the  rate  of  one  foot  in 
eight  feet.  At  least  one  side  yard  shall  be  provided  on  every  lot 
located  in  a  residence  district  as  designated  on  the  use  district  map. 
On  a  lot  having  a  width  of  less  than  thirty-seven  feet  at  the  time  it  is 
placed  in  a  D  District  and  improved  with  two  side  yards  the  width  of 
each  of  such  yards  may  be  reduced  one  foot.  On  a  lot  having  a  width 
of  less  than  thirty-three  and  one-half  feet  at  the  time  it  is  placed 
in  a  D  District  and  improved  with  two  side  yards  the  width  of  each 
of  such  yards  may  be  reduced  two  feet.  On  a  lot  improved  with  two 
side  yards  for  each  foot  that  the  southerly  or  easterly  of  such  side 
yards  exceeds  the  width  required  by  this  paragraph  the  other  side 
yard  may  be  reduced  one  foot,  but  in  no  case  shall  the  side  yard  be 
less  than  three  feet  wide.  On  a  vacant  lot  or  on  two  adjacent  vacant 
lots  having  a  width  of  thirty  feet  or  less  at  the  time  they  are  placed 
in  a  'D'  district  and  adjacent  lots  on  both  sides  of  such  lots  are  thirty 
feet  wide  or  less  with  buildings  already  erected  upon  them,  which 
buildings  are  so  located  on  the  respective  lots  as  to  leave  a  side  yard 
on  the  north  or  west  side  of  such  buildings  of  at  least  eighteen  inches 
and  on  the  south  or  east  side  of  such  buildings  of  at  least  four  feet, 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         335 

the  improvements  upon  such  vacant  lots  may  be  so  placed  as  to  leave 
a  side  yard  on  the  north  or  west  side  of  not  less  than  eighteen  inches 
and  on  the  south  or  east  side  of  not  less  than  four  feet. 

Courts  and  Setbacks.  All  courts  and  setbacks  shall  conform  to  the 
regulations  prescribed  by  Section  26.63  f°r  courts  and  setbacks  in  C 
Districts.  In  a  residence  district  as  designated  on  the  use  district 
map  all  windows  required  by  the  building  code  shall  open  directly 
either  upon  a  street  or  upon  a  rear  yard  or  side  yard,  provided  that 
on  an  interior  lot  having  a  width  of  less  than  thirty-five  feet  at  the 
time  it  is  placed  in  a  D  District  such  windows  may  open  on  an  outer 
lot-line  court. 

Building  Area.  No  building  shall  occupy  more  than  thirty  per 
cent  of  the  area  of  an  interior  lot,  nor  more  than  forty  per  cent  of  a 
corner  lot,  provided  that  on  an  interior  lot  containing  at  the  time  it 
is  placed  in  a  D  District  less  than  one-tenth  of  an  acre  a  building 
may  be  erected  so  as  to  occupy  not  more  than  one  thousand  three 
hundred  square  feet  nor  more  than  thirty-five  per  cent  of  such  lot. 

Number  of  Families  Housed.  No  dwelling  or  apartment  house 
shall  hereafter  be  erected  or  altered  to  accommodate  or  make  provi- 
sion for  more  than  twenty  families  on  any  acre  of  land  nor  more  than 
a  proportional  number  of  families  on  a  fractional  part  of  any  acre  of 
land.  The  maximum  number  of  families  which  may  hereafter  be 
housed  on  any  plot  of  ground  shall  not  exceed  the  integral  number 
obtained  by  multiplying  the  acreage  of  such  plot,  exclusive  of  the 
area  within  street  lines,  by  twenty.  The  limitation  imposed  by  this 
section  shall,  however,  not  prohibit  the  erection  of  a  single  family 
dwelling  on  any  lot  containing  at  the  time  it  is  placed  in  a  D  District 
an  area  of  less  than  one-twentieth  of  an  acre,  nor  the  erection  of  a 
two-family  dwelling  on  any  lot  containing  at  the  time  it  is  placed  in 
a  D  'District  more  than  one-fifteenth  of  an  acre. 

Exception..  Where  a  lot  is  not  within  a  residence  district  as  desig- 
nated on  the  use  district  map  all  yards  and  building  areas  shall  con- 
form to  the  regulations  prescribed  by  Section  26.63  f°r  yards  and 
building  areas  in  C  Districts. 

SEC.  26.65.  General  Regulations  in  Area  Districts.  The  follow- 
ing regulations  shall  apply  to  all  area  districts  unless  specifically 
excepted. 

Height  of  Buildings  Interpreted  in  Stories.  In  applying  the 
requirements  of  this  article  the  first  story  shall  be  considered  as  being 
not  more  than  twenty  feet  high  and  for  each  additional  thirteen  feet 
or  fraction  thereof  the  building  shall  be  considered  to  have  at  least 
one  additional  story. 

Building  Area  Limitation,  Where  Applied.  The  limitation  of 
building  area  in  this  article  shall  apply  at  the  curb  level  in  the  case  of 
a  building  located  in  a  residence  district  as  designated  on  the  use 
district  map  and  at  the  sill  level  of  the  second  story  windows,  but  not 


336  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

more  than  twenty-three  feet  above  the  curb  level  in  the  case  of  a 
building  located  in  a  district  other  than  a  residence  district  as  desig- 
nated on  the  use  district  map. 

Rear  Yard,  When  Required.  In  B,  C  and  D  Districts  there  shall 
be  a  rear  yard  on  every  lot,  or  portion  thereof,  the  rear  line  of  which 
is  more  than  fifty  feet  back  from  the  front  street  line.  In  A  Districts 
there  shall  be  a  rear  yard  on  every  lot,  the  rear  of  which  abuts  on 
an  alley. 

Rear  Yard,  When  Not  Required.  A  corner  lot  or  an  interior  lot 
running  through  the  block  from  street  to  street  or  to  within  fifty  feet 
of  another  street  shall  not  be  required  to  provide  a  rear  yard. 

Rear  Yard,  Computation  of  Depth.  In  computing  the  depth  of  a 
rear  yard  abutting  on  a  street  or  alley  the  measurement  may  include 
one-half  the  width  of  such  street  or  alley,  but  in  no  case  exceeding 
ten  feet. 

Rear  Yard,  Reduction  in  Size.  On  a  lot  less  than  one  hundred 
feet  deep  the  width  of  a  rear  yard  required  in  preceding  sections  of 
this  article  for  a  building  two  stories  or  less  in  height  may  be  reduced 
one  per  cent  for  each  foot  such  lot  is  less  than  one  hundred  feet  in 
depth,  provided  that  such  reduction  shall  in  no  case  exceed  one-half 
the  required  width.  For  each  additional  story  in  height  the  width  of 
such  yard  shall  be  increased  by  the  amounts  required  by  preceding 
sections  of  this  article. 

Rear  Yard,  Level  of.  Where  a  lot  is  not  within  a  residence  dis- 
trict as  designated  on  the  use  district  map,  the  lowest  level  of  a  rear 
yard  shall  not  be  above  the  sill  level  of  the  second  story  windows  nor 
in  any  case  more  than  twenty-three  feet  above  the  curb  level.  Where 
a  lot  is  within  a  residence  district  as  designated  on  the  use  district 
map  the  lowest  level  of  a  rear  yard  shall  not  be  above  the  curb  level 
or  the  level  of  the  ground  back  of  the  building  whichever  is  the 
highest,  and  not  above  the  sill  level  of  the  first  story  windows  in  any 
case. 

Accessory  Buildings.     Accessory  buildings  in  C  and  D  Districts 
may  occupy  ten  per  cent  of  the  lot  area  in  addition  to  the  building 
area  limitations  up  to  a  height  of  fifteen   feet  measured  from  the 
ground  floor  of  such  buildings  to  the  roofplate  thereof,  provided  that 
in  a  residence  district  not  more  than  forty  per  cent  of  required 
of  a  rear  yard  is  occupied  by  such  accessory  buildings.    On  a  lot  in  a 
D  District  as  designated  on  the  area  district  map  and  not  occupied 
by  more  than  one  family,  where  a  lot  exceeds  12,000  sq.  ft.  in 
one  additional  automobile  may  be  housed  in  addition  to  four  automo- 
biles for  each  3,000  sq.  ft.  such  lot  exceeds  12,000  sq.  ft.  in  area. 

Chimneys  and  Flues.  Chimneys  or  flues  may  be  erected  within 
a  rear  yard  provided  they  do  not  exceed  five  square  feet  in  arc.i  in 
the  aggregate  and  do  not  obstruct  ventilation. 

Fire  Escapes.    Open  or  lattice  enclosed  iron  fire  escapes  may  pro- 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         337 

ject  not  more  than  eight  feet  and  fire-proof  outside  stairways  or  solid- 
floored  balconies  to  fire  towers  may  project  not  more  than  four  feet 
into  a  rear  yard. 

Cut-Offs.  A  corner  of  a  yard  or  court  may  be  cut  off  between 
walls  of  the  same  building  provided  that  the  length  of  the  wall  of 
such  cut-off  does  not  exceed  five  feet. 

Extension  to  Yards  or  Courts.  Windows  opening  on  a  portion  of 
a  yard  or  court  which  is  an  extension  to  a  yard  or  court  conforming 
to  the  minimum  requirements  of  a  yard  or  court  shall  be  deemed  to 
comply  with  the  provisions  of  this  article.  Such  extension  on  which 
windows  open  shall  not  be  deeper  in  any  part  than  it  is  wide  on  the 
open  side  nor  shall  such  open  side  be  less  than  six  feet  wide.  The 
area  contained  in  an  extension  to  a  yard  or  court  shall  in  no  case  be 
included  in  computing  the  required  area  of  a  yard  or  court. 

Projections  Allowed.  The  area  required  in  a  yard  or  court  at  any 
given  level  shall  be  open  from  such  level  to  the  sky  unobstructed, 
except  for  the  ordinary  projections  of  skylights  and  parapets  above 
the  bottom  of  such  court  or  yard,  and  except  for  the  ordinary  pro- 
jections of  window  sills,  belt  courses,  gutters,  cornices  and  other  orna- 
mental features  to  the  extent  of  not  more  than  six  inches,  provided 
that  wider  cornices  on  the  street  front  may  turn  the  corner  and  pro- 
ject their  full  width  into  a  side  yard  or  outer  court  within  five  feet 
of  the  street  wall  of  the  building. 

Bay  Windows  and  Oriels.  In  a  side  yard  not  less  than  six  feet 
wide  an  oriel  or  bay  window  not  more  than  fifteen  feet  wide  and 
without  a  gable  may  be  constructed  to  extend  not  nearer  than  four 
and  one-half  feet  from  the  side  lot  line. 

Article  5.     General  Provisions 

SEC.  '  26.7.  District  Boundaries,  How  Determined.  The  boun- 
daries between  districts  are,  unless  otherwise  indicated,  either  the 
center  lines  of  streets  or  imaginary  lines  drawn  parallel  to  and  one 
hundred  and  twenty  feet  back  from  one  or  more  of  the  street  lines 
bounding  the  less  restricted  side  or  sides  of  a  block.  Where  uncer- 
tainty exists  or  the  street  layout  actually  on  the  ground  varies  from 
the  street  layout  as  shown  on  the  use,  height,  or  area  district  map, 
the  district  boundary  line  shall  be  determined  and  recorded  by  the 
inspector  of  buildings  in  accordance  with  the  intent  of  this  chapter. 

Division  of  Lots  by  Boundary  Lines.  Where  a  district  boundary 
line  divides  a  lot  in  a  single  ownership  at  the  time  of  the  passage  of 
this  chapter,  the  regulations  for  either  portion  of  such  lot  may  extend 
to  the  entire  lot,  but  not  more  than  twenty-five  feet  beyond  the  boun- 
dary line  of  the  district  for  which  such  regulations  are  established. 

Effect  of  Widening  a  Street.  Whenever  a  street  other  than  a 
boulevard  or  parkway  is  so  widened  as  to  be  within  one  hundred  and 


338          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

twenty  feet  of  a  boundary  line  of  a  more  restricted  district,  the  less 
restricted  district  shall  thereupon  extend  one  hundred  and  twenty 
feet  back  from  the  widened  street  and  such  change  in  the  district 
boundary  lines  shall  have  the  same  force  and  effect  as  though  sepa- 
rately ordained. 

SEC.  26.71.  Effect  of  This  Chapter  Upon  Contracts  and  Agree- 
ments and  Upon  Other  Laws  and  Regulations.  In  their  interpreta- 
tion and  application  the  provisions  of  this  chapter  shall  be  held  to  be 
the  minimum  requirements  adopted  for  the  promotion  of  the  public 
safety,  health,  convenience  and  general  welfare.  It  is  not  intended 
by  this  chapter  to  interfere  with  or  abrogate  or  annul  any  easements, 
covenants  or  other  agreements  between  parties;  nor  is  it  intended  by 
this  chapter  to  repeal,  abrogate,  annul  or  in  any  way  to  impair  or 
interfere  with  any  existing  provision  of  law  or  ordinance  or  any 
rules,  regulations  or  permits  previously  adopted  or  issued  or  which 
shall  be  adopted  or  issued  pursuant  to  law  relating  to  the  use  of 
buildings  or  premises;  provided,  however,  that  where  this  chapter 
imposes  a  greater  restriction  upon  the  use  of  buildings  or  premises 
or  upon  the  height  of  buildings  or  requires  larger  yards,  courts  or 
other  open  spaces  than  are  imposed  or  required  by  such  existing 
provision  of  law  or  ordinance  or  by  such  rules,  regulations  or  per- 
mits, the  provisions  of  this  chapter  shall  control. 

SEC.  26.72.  Enforcement  by  Building  Inspector;  Issuance  of 
Building  Permits.  This  chapter  shall  be  enforced  by  the  inspector  of 
buildings.  He  shall  issue  no  permit  for  the  construction  or  alteration 
of  any  building  or  structure  or  part  thereof  plans  and  specifications 
and  intended  use  for  which  are  not  in  all  respects  in  conformity  with 
the  provisions  of  this  chapter.  In  case  the  intended  use  owing  to  its 
nature  or  the  vagueness  of  its  statement  falls  within  more  than  one 
of  the  classes  of  uses  established  by  Article  2  of  this  chapter  such 
building  or  structure  shall  not  be  permitted  in  any  district  in  which 
any  such  classes  are  prohibited. 

SEC.  26.73.  Certificates  of  Occupancy.  It  shall  be  unlawful  to 
use  or  permit  the  use  of  any  building  or  premises  or  part  thereof 
hereafter  created,  erected,  altered,  changed  or  converted  wholly  or 
partly  in  its  use  or  structure  until  a  certificate  of  occupancy  to  the 
effect  that  the  building  or  premises  or  the  part  thereof  so  created, 
erected,  altered,  changed  or  converted  and  the  proposed  use  thereof 
conform  to  the  provisions  of  this  chapter  shall  have  been  issued  by 
the  inspector  of  buildings.  It  shall  be  the  duty  of  the  inspector  of 
buildings  to  issue  a  certificate  of  occupancy  within  ten  days  after  a 
request  for  the  same  is  filed  in  his  office  by  any  owner  of  a  building 
or  premises  affected  by  this  chapter,  provided  said  buildii 
premises,  or  the  part  thereof  so  created,  erected,  altered,  changed  or 
converted,  and  the  proposed  use  thereof,  conforms  with  all  the  re- 
quirements of  Article  4  of  this  chapter. 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        339 

Fees  for  Certificates  of  Occupancy.  There  shall  be  charged  for 
each  certificate  of  occupancy  for  a  single  family  dwelling  and  uses 
accessory  thereto  a  fee  of  one  dollar,  and  for  all  other  uses  a  fee  of 
two  dollars.  Such  fees  shall  be  paid  into  the  city  treasury  and 
credited  to  the  general  city  fund. 

Temporary  Certificates  of  Occupancy.  Pending  the  issuance  of  a 
regular  certificate,  a  temporary  certificate  may  be  issued  for  period 
not  exceeding  six  months,  during  the  completion  of  alterations  or 
during  partial  occupancy  of  a  building  pending  its  completion.  Such 
temporary  certificates  shall  not  be  issued  except  under  such  restric- 
tions and  provisions  as  will  adequately  insure  the  safety  of  the  occu- 
pants. No  temporary  certificate  shall  be  issued  if,  prior  to  its  com- 
pletion, the  building  fails  to  conform  to  the  provisions  of  the  build- 
ing ordinance  or  of  this  chapter  to  such  a  degree  as  to  render  it 
unsafe  for  the  occupancy  proposed. 

Changes  Requiring  Issuance  of  New  Certificate  of  Occupancy. 
If  the  conditions  of  use  or  occupancy  of  any  building  or  premises  or 
part  thereof  are  substantially  changed,  or  so  changed  as  not  to  be  in 
conformity  with  the  conditions  required  by  a  certificate  issued  there- 
for, or  if  the  dimensions  or  area  of  the  lot  upon  which  a  building  is 
located  or  its  yards  or  courts  are  reduced,  said  certificate  shall  be 
void  and  the  owner  shall  notify  the  inspector  who  shall  order  an 
inspection  of  the  building  premises  or  lot.  If  the  building  conforms 
to  all  the  requirements  of  this  chapter  and  of  Chapter  IV  a  new  cer- 
tificate shall  be  issued  as  herein  provided. 

Procedure  in  Case  of  Non-conformity.  If,  on  any  inspection,  the 
conditions  of  a  building  or  premises  or  its  use  or  occupancy  are  found 
not  to  conform  to  the  requirements  of  this  chapter  or  of  Chapter  IV 
or  the  conditions  of  an  existing  certificate  therefor,  the  inspector 
shall  at  once  issue  written  notice  to  the  owner,  specifying  the  manner 
in  which  the  building  or  premises  or  its  use  or  occupancy  fails  to  so 
conform,  and  the  owner  shall  at  once  take  steps  to  make  it  so  con- 
form, as  directed  by  the  inspector;  and  if  it  is  necessary  for  the 
proper  protection  of  the  occupants  he  shall  order  the  use  or  the  occu- 
pancy of  the  building  or  premises  modified  or  the  building  or  premises 
vacated  until  its  condition  is  made  satisfactory  in  conformity  with  the 
requirements  of  this  chapter  and  of  Chapter  IV,  at  which  time  a 
certificate  shall  be  issued  as  herein  provided. 

SEC.  26.74.  Amendments  and  Changes  in  the  Districts  and  Regu- 
lations Therefor  by  the  Common  Council.  The  Common  Council  may 
from  time  to  time  on  its  own  motion  or  on  petition,  after  public  notice 
and  hearing  as  provided  by  law  and  after  report  by  the  Board  of 
Public  Land  Commissioners,  alter,  supplement  or  change  the  boun- 
daries or  regulations  herein  or  subsequently  established.  Whenever 
the  owners  of  fifty  per  cent  or  more  of  the  frontage  in  any  district 
or  part  thereof  present  a  petition  duly  signed  and  acknowledged  to 


340  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  Council  requesting  an  amendment,  supplement  or  change  in  the 
regulations  prescribed  for  such  district  or  part  thereof,  it  shall  be 
the  duty  of  the  Council  to  vote  upon  said  petition  within  ninety  days 
after  the  filing  of  the  same  by  the  petitioners  with  the  city  clerk.  In 
case  a  protest  against  a  proposed  amendment,  supplement  or  change 
be  presented,  duly  signed  and  acknowledged  by  the  owners  of  twenty 
per  cent  or  more  of  any  frontage  proposed  to  be  altered,  or  by  the 
owners  of  twenty  per  cent  of  the  frontage  immediately  in  the  rear 
thereof,  or  by  the  owners  of  twenty  per  cent  of  the  frontage  directly 
opposite  the  frontage  proposed  to  be  altered,  such  amendment  shall 
not  be  passed  except  by  a  three-fourths  vote  of  the  Council.  If  any 
area  is  hereafter  transferred  to  another  district  by  a  change  in  dis- 
trict boundaries  by  an  amendment,  as  above  provided,  the  provisions 
of  this  ordinance  in  regard  to  buildings  or  premises  existing  at  the 
time  of  the  passage  of  this  chapter  shall  apply  to  buildings  or  prem- 
ises existing  at  the  time  of  passage  of  such  amendment  in  such  trans- 
ferred area. 

SEC.  26.75.  Completion  and  Restoration  of  Existing  Buildings. 
Nothing  herein  contained  shall  require  any  change  in  the  plans,  con- 
struction or  intended  use  of  a  building  for  which  a  building  permit 
has  been  heretofore  issued  and  the  construction  of  which  shall  have 
been  diligently  prosecuted  within  six  months  of  the  date  of  such  per- 
mit, and  the  ground  story  framework  of  which,  including  the  second 
tier  of  beams,  shall  have  been  completed  within  six  months,  and  which 
entire  building  shall  be  completed  according  to  such  plans  as  filed 
within  two  years  from  the  date  of  the  passage  of  this  chapter.  Noth- 
ing in  this  chapter  shall  prevent  the  restoration  of  a  wall  declared 
unsafe  by  the  inspector  of  buildings. 

SEC.  26.76.  Penalties.  Any  person,  firm,  company  or  corporation 
owning,  controlling  or  managing  any  building  or  premises  wherein 
or  whereon  there  shall  be  placed  or  there  exists  anything  in  violation 
of  any  of  the  sections  of  this  chapter;  or  any  person,  firm,  company 
or  corporation  who  shall  assist  in  the  commission  of  any  violation  of 
these  sections;  or  who  shall  build  contrary  to  the  plans  or  specifica- 
tions submitted  to  and  approved  by  the  building  inspector;  or  any 
person,  firm,  company  or  corporation  who  shall  omit,  neglect  or 
refuse  to  do  any  act  required  in  said  sections  shall,  except  where  a 
special  penalty  is  provided,  be  subject  to  a  fine  of  not  less  than  ten 
dollars  nor  more  than  two  hundred  dollars,  together  with  the  costs 
of  the  action,  and  in  default  of  payment  thereof,  to  imprisonment  in 
the  house  of  correction  for  a  period  of  not  less  than  one  day  nor 
more  than  six  months,  or  until  such  fine  and  costs  shall  be  paid;  and 
every  such  person,  firm,  company  or  corporation  shall  he  deemed 
guilty  of  a  separate  offense  for  each  day  such  violation,  disobedience, 
omission,  neglect  or  refusal  shall  continue;  provided,  however,  that 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         341 

said  accumulated  penalties  recoverable  in  any  one  action  shall  not 
exceed  the  sum  of  two  thousand  dollars. 

SEC.  26.77.  Validity  of  Ordinance.  If  any  article,  section,  para- 
graph, subdivision,  clause  or  provision  of  this  chapter  shall  be  ad- 
judged invalid,  such  adjudication  shall  apply  only  to  the  article, 
section,  paragraph,  subdivision,  clause  or  provision  so  adjudged,  and 
the  rest  of  this  chapter  shall  remain  valid  and  effective. 

SEC.  2.  This  ordinance  shall  take  effect  and  be  in  force  from  and 
after  its  passage  and  publication. 

No.  8.    THE  ALAMEDA,  CALIFORNIA,  ORDINANCE" 

Ordinance  Establishing  Districts  or  Zones  and  Regulating  Therein 
the  Use  of  Property,  Height  of  Buildings,  and  Required  Open 
Spaces  for  Light  and  Ventilation  of  Such  Buildings 

WHEREAS,  the  public  interest,  health,  comfort,  convenience,  pres- 
ervation of  the  public  peace,  safety,  morals,  order  and  the  public  wel- 
fare of  the  City  of  Alameda  require  the  classification  of  the  city 
into  districts  within  some  of  which  it  shall  be  lawful  and  in  others 
unlawful  to  erect,  construct,  alter,  or  maintain  certain  buildings  or 
uses  of  property  or  to  carry  on  certain  trades  or  callings  or  within 
which  the  height  and  bulk  of  future  buildings  shall  be  limited. 

Now,  therefore,  be  it  ordained  by  the  Council  of  the  City  of 
Alameda  as  follows: 

ARTICLE    I — USE   DISTRICTS 

SEC.  I.  Use  Districts.  For  the  purpose  of  regulating  and  restrict- 
ing the  location  of  trades  and  industries,  businesses  and  residences 
and  buildings  designed  for  specified  uses,  the  City  of  Alameda  is 
hereby  divided  into  the  following  classes  of  Residence,  Business  and 
Industrial  Use  Districts: 

RESIDENCE  DISTRICTS  OF 

Class  I — Single  family  dwellings. 

Class  II — Dwellings,  flats,  clubs,  railroad  shelter  stations,  apart- 
ment houses,  hotels  without  stores. 

BUSINESS   AND   PUBLIC  USE  DISTRICTS   OF 

Class  III — Retail  businesses,  trades  and  professions,  including 
residences  of  Classes  I  and  //. 

48  No.  144,  N.  S.,  adopted  Feb.  18,  1919 ;  here  given  as  amended  by 
No.  149,  N.  S.,  May  28,  1919. 


342 

Class  IV — Schools,  public  and  semi-public  buildings,  churches, 
playgrounds,  green-houses  and  parks,  including  residences  of  Class  I. 

Class  V — Public  garage,  dyeing  and  cleaning,  wholesale  business, 
bath  houses,  amusement  parks,  oil  stations  and  feed  business,  includ- 
ing residence  and  business  uses  of  Classes  I,  II,  III  and  IV. 

Class  VI — Hospitals,  sanitariums,  charitable  institutions,  includ- 
ing residences  of  Classes  I  and  //. 

INDUSTRIAL    DISTRICTS    OF 

Class  VII — Factories  not  obnoxious,  warehouses,  including  any 
business  use,  but  excluding  new  residences  of  any  kind. 

Class  VIII — Obnoxious  and  odor  producing  factories,  including 
any  business  use,  but  excluding  new  residences  of  any  kind. 

As  herein  defined  and  limited  and  as  shown  on  the  map  entitled 
"Diagram  of  Use  Districts,  Building  Zone  Map  of  the  City  of  Ala- 
meda,  February  4,  1919,"  filed  in  the  office  of  the  City  Clerk  of  the 
City  of  Alameda,  February  4,  1919,  which  is  hereby  declared  to  be 
part  hereof.  The  Use  Districts  designated  herein  and  on  said  map 
are  hereby  established.  No  building  or  premises  shall  be  erected  or 
used  for  any  purpose  other  than  a  purpose  permitted  in  the  Use  Dis- 
trict of  the  class  in  which  such  premises,  building  or  property  is 
located. 

SEC.  2.  Residence  Districts  of  Class  I :  In  residence  districts  of 
Class  I  no  building,  structure  or  premises  shall  be  erected,  con- 
structed, altered  or  maintained,  except  as  provided  in  section  12 
hereof,  which  shall  be  used  for  or  designed  or  intended  to  be  used 
for  any  purpose  other  than  that  of  a  single  family  dwelling. 

The  following  described  residence  districts  of  Class  I  are  hereby 
established : 

All  of  the  City  of  Alameda  except  the  districts  established  and 
included  in  Residence  Districts  of  Class  II  or  in  Business  or  Indus- 
trial Use  Districts  as  hereinafter  described  and  shown  on  the  afore- 
said map. 

SEC.  3.  Residence  Districts  of  Class  II:  In  residence  districts 
of  Class  II  no  building  structure  or  premises  shall  be  erected,  con- 
structed, altered  or  maintained,  except  as  provided  in  section  12 
hereof,  and  which  shall  be  designed,  intended  or  used  for  any  pur- 
pose other  than  a  single  family  dwelling,  flat,  group  dwelling,  board- 
ing house  or  lodging  house,  club,  fraternity  dwelling,  apartment  or 
hotel  without  stores. 

SEC.  4.  Business  and  Public  Use  Districts  of  Class  III — Retail 
Business  and  Offices: 

(a)  In  business  and  public  use  districts  of  Class  III,  no  build- 
ing, structure  or  premises  shall  be  erected,  constructed  or  maintained, 
except  as  provided  in  section  12  hereof  which  shall  be  designed,  in- 


tended  or  used  for  any  purpose  other  than  those  specified  in  Resi- 
dence Districts  of  Classes  I  and  //  hereof  and  those  of  a  business  or 
professional  office,  retail  trade,  theatre  or  store,  with  the  exceptions 
made  in  paragraph  (6)  of  this  section. 

(&)  In  a  Business  and  Public' Use  District  of  Class  III  no  build- 
ing or  premises  shall  be  used  and  no  building  shall  be  erected  which 
is  arranged,  intended  or  designed  to  be  used  for  any  of  the  following 
specified  trades,  industries  or  uses,  except  as  provided  in  section  12 
hereof: 

[The  list  of  uses  is  omitted.     For  a  list  of  uses,  see  p.  308.] 

(c)  In  any  Business  or  Public  Use  District  no  building  or  prem- 
ises shall  be  used,  and  no  building  shall  be  erected,  which  is  arranged, 
intended  or  designed  to  be  used  for  any  trade,  industry  or  use  that 
is  noxious  or  offensive  by  reason  of  the  emission  of  odor,  dust,  smoke, 
gas  or  noise. 

(d)  In  any  Business  or  Public  Use  District  no  building  or  prem- 
ises shall  be  used,  and  no  building  shall  be  erected,  which  is  arranged, 
intended   or   designed  to   be   used    for   any   kind   of   manufacturing, 
except  that  any  kind  of  manufacturing  or  wholesale  business  not  in- 
cluded  within  the   prohibitions   of  paragraph    (a)    and    (&)    of   this 
section  may  be  carried  on,  provided  not  more  than  25  per  cent  of 
the  ground  floor  space  nor  of  the  total  floor  space  of  the  building  is 
so  used.     The  printing  of  a  newspaper  shall  not  be  deemed  manu- 
facturing. 

SEC.  5.  Business  and  Public  Use  Districts  of  Class  IV.  In  Busi- 
ness and  Public  Use  Districts  of  Class  IV,  no  building,  structure  or 
premises  shall  be  erected,  constructed,  altered  or  maintained,  except 
as  provided  in  section  12  hereof  which  shall  be  designed,  intended  or 
used  for  any  purpose  other  than  that  of  an  Assembly  Hall,  church, 
public  or  private  school,  playground  structure,  park  structure,  public 
art  gallery,  museum,  library,  fire  house  or  convenience  station,  or 
other  public  or  semi-public  building,  or  residence  use  specified  in 
Class  I. 

SEC.  6.  Change  of  Classification:  When  an  established  Busi- 
ness and  Public  Use  District  of  Class  IV  adjoins  and  touches  the 
boundaries  of  a  Residence  District  of  Classes  I  or  //  on  three  of  its 
sides,  or  is  completely  surrounded  by  the  same,  upon  the  change  of 
use  of  said  district  or  of  any  portion  thereof  to  a  use  specified  for 
Residence  Districts  of  Classes  I  or  //,  said  property  shall  thereafter 
be  classified  as  a  Residence  District  of  Class  I  or  of  Class  II  re- 
spectively. 

SEC.  7.  Business  and  Public  Use  Districts  of  Class  V :  Garages, 
Etc.  In  Business  and  Public  Use  Districts  of  Class  V  no  building, 
structure,  or  premises  shall  be  erected,  constructed,  altered  or  main- 
tained, except  as  provided  in  section  12  hereof,  which  shall  be  desig- 
nated, intended  or  used  for  any  purpose  other  than  those  permitted 


344  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

in  a  Residence  District  of  Classes  I  and  //  and  in  Business  and  Public 
Use  Districts  of  Classes  III  and  IV  hereof,  and  that  of  a  bath  house, 
commercial  recreation  park,  undertaking  parlor,  public  garage,  gaso- 
line or  oil  supply  station,  feed,  fuel  or  construction  material  busi- 
ness, dyeing  and  dry  cleaning  establishment  or  wholesale  business. 

SEC.  8.  Business  and  Public  Use  Districts  of  Class  VI — Hos- 
pitals and  Institutions.  In  Business  and  Public  Use  Districts  of 
Class  VI  no  building,  structure  or  premises  shall  be  erected,  con- 
structed, altered  or  maintained,  except  as  provided  in  section  12 
hereof,  which  shall  be  designed,  intended  or  used  for  any  purpose 
other  than  that  of  a  public  or  private  hospital,  sanitarium,  asylum  or 
institute  for  the  treatment  of  disease,  clinic,  day  nursery  or  other 
charitable  institution  or  Residence  Use  specified  in  Classes  I  or  //. 

SEC.  9.  Industrial  Districts  of  Class  VII — Ordinary  Factories 
and  Warehouses. 

(a)  In  Industrial  Districts  of  Class  VII,  no  building,  structure 
or  premises  shall  be  erected,  constructed,  altered  or  maintained,  ex- 
cept as  provided  in  section  12  hereof  which  shall  be  designed,  intended 
or  used  for  any  purpose  other  than  that  of  a  retail  or  wholesale  busi- 
ness such  as  specified  in  Business  and  Public  Use  Districts  of  Classes 
II,  III.  IV,  V  and  VI,  and  that  of  the  following  specified  trades,  in- 
dustries or  uses : — 

Blacksmithing  or  horseshoeing,  Bottle  or  glass  factory,  Brew- 
ing or  distilling  of  liquors,  Brick  yard  or  kiln,  Carpet  cleaning  or 
carpet  beating,  Coal  yard  or  coal  or  fuel  storage,  dry  dock  or  other 
dock  or  wharf,  Electric  Central  station  power  plant,  Food  Product, 
cereal  and  similar  factories,  Fruit  packing  and  curing,  Hay  barn  or 
warehouse,  Junk,  scrap  paper  or  rag  storage  or  baling,  Livery  stable, 
Feed  yard,  Veterinary  hospital  or  riding  academy,  Lumber  yard,  Ma- 
chine shop,  Mattress  or  bed-spring  factory,  Milk  Bottling  and  Dis- 
tributing Station.  Nursery  or  greenhouse,  Oil  cloth  and  linoleum 
manufacture,  Paint,  oil,  varnish  or  turpentine  manufacturing,  Planing 
Mill  or  Sash  and  door,  box  or  woodwork  factory,  Printing  ink  manu- 
facture, Railroad  freight  yard,  team  track  freight  Depot  or  shed, 
Roller  mill,  Rubber  manufacture  from  crude  material,  Sheet  Metal 
Works,  Ship  building  plant  or  ship  yard,  Silk,  cotton  or  other  mill 
using  power,  Shoddy  manufacture  or  wool  scouring,  Stable  for  more 
than  one  horse,  Starch,  glucose  or  dextrine  factory,  Stone  or  monu- 
mental works,  Rock,  sand  gravel,  loading,  distributing  or  receiving 
station,  Sugar  refining,  Tar  distillation  or  manufacture,  Tar  roofing 
or  tar  waterproofing  manufacture,  Wood  yard. 

(&)  It  shall  be  unlawful  for  any  person,  firm  or  corporation  to 
erect,  establish,  carry  on  or  maintain,  except  as  provided  in  section  12 
hereof,  within  an  Industrial  District  of  Class  VII  as  described  in 
paragraph  (a)  of  this  section,  any  industry  engaged  in  making  or 
preparing  soap,  candles,  glue,  tallow  oil,  chemicals,  gunpowder  or 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        345 

other  explosives,  bone  boiling,  fat  boiling,  tanning,  dressing  or  pre- 
paring skins,  hides  or  leather,  or  crematory. 

(c)  In  Industrial  Districts  of  Class  VII  no  buildings  or  prem- 
ises shall  be  designed,  intended  or  used  for  any  trade,  industry,  or 
use  that  is  noxious  or  offensive  by  reason  of  the  emission  of  odor, 
dust,  smoke,  gas  or  noise. 

SEC.  10.     Industrial  Districts  of  Class  VIII — Noxious  Industries. 

In  Industrial  Districts  of  Class  VIII,  no  building,  structure  or 
premises  shall  be  erected,  constructed  or  maintained,  except  as  pro- 
vided in  section  12  hereof,  which  shall  be  designed,  intended  or  used 
for  any  purpose  other  than  a  Business  or  Industrial  Use. 

SEC.  ii.    No  New  Dwellings  Permitted  in  Industrial  Districts. 

In  any  Industrial  District  of  Class  VII  or  of  Class  VIII  no  new 
building  or  structure  shall  be  hereafter  designed,  erected,  constructed 
or  maintained,  except  as  provided  in  section  12,  hereof  for  dwelling, 
sleeping  or  human  housing  purposes,  provided  however  that  in  con- 
nection with  any  industrial  plant  one  single  family  dwelling  quarters 
for  one  watchman  employed  in  said  plant  may  be  built  and  used  by 
him  and  his  family. 

SEC.  12.     Existing  Building  and  Premises. 

(a)  In  any  building  or  premises  any  lawful  use  existing  therein 
at  the  time  of  the  passage  of  this  ordinance  may  be  continued  therein, 
although  not  conforming  to  the  regulations  of  the  use  district  in 
which  it  is  maintained,  provided  that  no  structural  alterations  re- 
quiring a  building  permit  shall  be  made  therein  and  no  new  building 
or  addition  be  erected,  except  in  conformity  with  the  requirements 
of  this  ordinance,  or  unless  required  by  law. 

(&)  No  existing  building  designed,  arranged,  intended  or  de- 
voted to  a  use  not  permitted  by  this  article  in  the  Use  District  in 
which  such  use  is  located  shall  be  enlarged,  extended,  reconstructed 
or  structurally  altered  unless  such  use  is  changed  to  a  use  permitted 
in  the  Use  District  in  which  such  building  is  located. 

SEC.  13.     Reversion  of  Exceptions. 

(a)  If  at  any  time  any  building  or  premises  now  erected  or  main- 
tained, which  by  the  terms  of  this  ordinance,  or  of  a  later  ordinance, 
or  amendment  thereto,  is  declared  to  be  an  exception  to  the  Use  Dis- 
trict, either  completely  or  partially  surrounding  such  exception,  shall 
be  changed  from  its  present  use  to  a  different  use  or  destroyed,  or 
more  than  forty  (40)  per  cent  burned,  moved  or  altered,  then  and 
without  further  action  by  the  City  Council,  the  said  premises  on 
which  said  building  or  structure  was  erected  or  maintained,  shall  from 
and  after  the  time  of  such  destruction,  burning,  removal  or  alteration 
be  deemed  to  be  classified  without  further  notice  as  a  district  of  the 
same  class  of  use  as  the  surrounding  or  adjoining  district  to  which 
said  premises  formed  originally  an  exception,  and  the  same  shall  be 
subject  to  all  the  restrictions  of  such  classification. 


346  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

(&)  Doctors'  Offices  in  Dwellings.  Single  family  or  other  type  of 
dwellings  may  lawfully  include  the  office  of  a  physician,  surgeon, 
dentist,  or  one  artist's  or  musician's  studio  without  violating  the  pro- 
visions of  any  classification  in  any  paragraph  of  this  ordinance. 

(c)  Private  Garages  and  Other  Outbuildings.  Private  garages 
and  the  customary  outbuildings  may  be  located  or  maintained  as 
accessory  to  any  building  lawfully  within  the  boundaries  of  any  dis- 
trict herein  specified. 

A  private  garage  for  more  than  five  motor  vehicles  shall  not  be 
deemed  accessory. 

ARTICLE   II — HEIGHT  DISTRICTS 

SEC.  14.  Height  Districts.  For  the  purpose  of  regulating  and 
limiting  the  height  and  bulk  of  buildings  hereafter  erected  the  City 
of  Alameda  is  hereby  divided  into  the  following  classes  of  Height 
Districts: 

2l/2  Story  Height  Districts — Limited  to  a  maximum  of  two  stories 
and  attic,  not  to  exceed  a  total  height  of  35  feet  to  finished  ceiling 
line  of  the  attic  story  above  the  curb. 

5  Story  Height  Districts — Three  stories  not  to  exceed  40  feet. 

4  Story  Height  Districts — Four  stories  not  to  exceed  50  fert. 

8  Story  Height  Districts — Eight  stories  not  to  exceed  90  feet,  as 
hereinafter  defined  and  limited  and  as  shown  on  the  map  entitled 
"Diagram  of  Height  Districts.  Building  Zone  Map  of  the  City  of 
Alameda,  February  4,  1919,"  filed  in  the  office  of  the  City  Clerk  of 
the  City  of  Alameda,  Feb.  4,  1919,  and  which  is  hereby  declared  to 
be  part  hereof.  The  Height  Districts  designated  on  said  map  are 
hereby  established.  No  building  or  part  of  a  building  shall  be  erected, 
constructed,  or  altered,  except  in  conformity  with  the  regulations 
herein  described  for  the  Height  District  in  which  such  building  is 
located. 

SEC.  15.  2  1/2  Story  Height  Districts.  In  a  2l/2  Story  Height 
District  no  building  shall  be  erected  hereafter  to  a  height  in  i 
of  two  stories  and  a  finished  attic  nor  more  than  thirty-five  (35)  feet 
to  the  finished  ceiling  line  of  the  second  story,  above  the  established 
curb  grade  of  the  street  in  front  of  the  building,  or  adjoining  ground 
level,  except  as  provided  in  section  19  hereof. 

The  following  described  2l/2  Story  Height  Districts  are  hereby 
established : 

All  of  the  City  of  Alameda  not  otherwise  described  or  designated 
as  in  a  3  Story,  4  Story,  or  an  8  Story  Height  District,  by  sections 
16,  17  and  18  hereof,  as  shown  on  said  last  mentioned  map,  provided, 
however,  that  an  apartment  house  may  be  erected  in  this  district 
to  a  height  of  three  stories  as  prescribed  in  section  16. 

SEC.  16.     3  Story  Hcujht  Districts.     In  a  3   Story   Height    : 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         347 

trict  no  building  shall  be  erected  hereafter  to  a  height  in  excess  of 
three  stories,  nor  more  than  forty  (40)  feet  to  the  finished  ceiling 
line  of  the  third  story  above  the  established  curb  grade  of  the  street 
in  front  of  the  building,  or  adjoining  ground  level,  except  as  pro- 
vided in  section  19  hereof. 

SEC.  17.  4  Story  Height  Districts.  In  a  4  Story  Height  District 
no  building  shall  be  erected  hereafter  to  a  height  in  excess  of  four 
stories  nor  more  than  fifty  (50)  feet  to  the  finished  ceiling  line  of 
the  fourth  story  above  the  established  curb  grade  of  the  street  in 
front  of  the  building,  or  adjoining  ground  level,  except  as  provided 
in  section  19  hereof. 

SEC.  18.  8  Story  Height  Districts.  In  an  8  Story  Height  Dis- 
trict no  building  shall  be  erected  hereafter  to  a  height  in  excess  of 
eight  stories,  nor  more  than  ninety  (90)  feet  to  the  finished  ceiling 
line  of  the  eighth  story  above  the  established  curb  grade  in  front 
of  the  building,  or  adjoining  ground  level,  except  as  provided  in 
section  19  hereof. 

SEC.  19.    Height  District  Exceptions. 

(a)  No  building  shall  hereafter  be  erected  in  any  Height  Dis- 
trict to  a  height  in  excess  of  four  stories  nor  more  than  fifty  (50) 
feet  to  the  finished  ceiling  line  of  the  fourth  story  above  the  estab- 
lished curb  grade  of  the  street  in  front  of  the  building  unless  the 
width  of  said  building  on  each  and  every  abutting  public  street  is  at 
least  one-half  of  its  height. 

(&)  Towers,  chimneys,  spires,  gas  or  water  tanks  completely 
closed  in  with  walls  down  to  the  ground  or  to  the  adjoining  lower 
story  of  the  building  may  be  permitted  as  to  a  greater  height  than 
allowed  in  the  class  of  Height  District  in  which  the  building  is  lo- 
cated, provided  that  no  such  exception  shall  cover  at  any  level  more 
than  fifteen  (15)  per  cent  in  area  of  the  lot. 

(c)  Nothing   in   this   article    shall   prevent   the   projection   of   a 
cornice  beyond  the  street  wall  to  an  extent  not  exceeding  five  feet  in 
any  case. 

(d)  No  building  shall  hereafter  be  erected  in  any  height  district 
to  a  height  in  excess  of  the  width  of  the  street  upon  which  it  abuts, 
measured  at  right  angles  from  the  front  property  line  to  the  opposite 
property  line. 

SEC.  20.  Area  Requirements.  For  the  purpose  of  regulating 
and  determining  the  area  of  yards,  courts  and  other  open  spaces  for 
buildings  hereafter  erected,  the  following  area  requirements  are 
hereby  established.  No  building  or  part  of  a  building  shall  be  erected 
except  in  conformity  with  the  area  regulations  herein  prescribed  for 
the  Use  District  in  which  said  building  is  located.  Unless  otherwise 
expressly  provided  the  term  rear  yard,  side  yard,  outer  court  or 
inner  court  when  used  in  this  article  shall  be  deemed  to  refer  only 


34«  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

to  a  rear  yard,  side  yard,  outer  court  or  inner  court  required  by 
this  article.  No  lot  area  shall  be  so  reduced  or  diminished  that  the 
yards,  courts,  or  open  spaces  shall  be  smaller  than  prescribed  in  this 
article. 

SEC.  21.  In  Industrial  Use  Districts  of  Class  VII  or  of  Class 
VIII,  a  court  or  a  yard  where  required  by  section  26  of  this  ordinance 
shall  be  at  least  two  inches  in  least  dimension  for  each  one  foot  of 
such  height,  with  a  depth  of  not  less  than  five  (5)  feet. 

SEC.  22.  In  Business  and  Public  Use  Districts  of  Classes  III, 
IV,  V  and  VI,  and  in  each  business,  store  or  office  building  in  In- 
dustrial Districts  of  Classes  VII  and  VIII  a  court  or  a  yard,  where 
required  by  section  26  of  this  ordinance,  of  each  building  hereafter 
constructed,  of  whatever  use,  shall  be  of  the  same  least  dimensions 
and  area  as  required  for  tenement  houses  in  the  "State  Tenement 
House  Act." 

SEC.  23.  Behind  every  building  hereafter  erected  in  a  Business  or 
Public  Use  District  of  Classes  III,  IV,  V  or  VI,  outside  the  fire  limits 
of  the  City  of  Alameda,  there  shall  be  a  rear  yard  extending  across 
the  entire  width  of  the  building.  Such  yard  shall  be  at  every  point 
open  and  unobstructed  from  the  ground  to  the  sky,  except  that  in 
the  case  of  corner  lots  the  rear  yard  may  begin  at  the  top  of  the 
entrance  story.  Every  part  of  such  yard  shall  be  directly  accessible 
from  every  other  part  thereof.  The  depth  of  such  yard  shall  be 
measured  at  right  angles  from  the  rear  lot  line  to  the  extreme  rear 
part  of  the  building.  Each  outer  court,  inner  court  or  side  yard  of 
each  building  hereafter  erected  outside  the  fire  limits  in  said  Busi- 
ness and  Public  Use  Districts,  shall  be  of  the  same  least  dimensions 
and  area  as  required  for  tenement  houses  in  the  "State  Tenement 
House  Act,"  provided  however  that  in  the  case  of  corner  lots  no 
rear  yard  shall  be  less  than  ten  (10)  feet  in  depth  and  in  the  case 
of  interior  lots  no  rear  yard  shall  be  less  than  twelve  (12)  feet  in 
depth. 

SEC.  24.  In  Residence  Use  Districts  of  Classes  I  or  II  each 
court,  side  yard,  or  rear  yard  of  each  building,  of  whatever  use, 
shall  be  of  the  same  least  dimensions  and  area  as  required  for  a 
dwelling  in  the  "State  Dwelling  House  Act." 

SEC.  25.  Home  Area  Districts.  For  the  purpose  of  regulating 
and  limiting  congestion  in  home  neighborhoods  for  buildings  here- 
after erected,  Home  Area  Districts  in  the  City  of  Alameda  are  hereby 
established,  in  which  no  building  nor  structure  shall  hereafter  be 
erected,  constructed  or  altered  which  is  not  detached  at  least  four 
(4)  feet  from  every  other  building  or  which  covers  more  than  fifty 
(50)  per  cent  in  area  of  the  lot,  as  follows:  All  of  that  portion  or 
those  portions  of  the  City  of  Alameda  established  as  Residence  Use 
Districts  of  Class  I  as  described  in  section  2  of  this  ordinance  and  as 
shown  on  the  map  entitled  "Diagram  of  Use  Districts,  etc." 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         349 

SEC.  26.  Yards  and  Courts.  If  a  room  in  which  persons  live, 
sleep,  work  or  congregate  receives  its  light  and  air  in  whole  or  in 
part  directly  from  an  open  space  on  the  same  lot  with  the  building, 
there  shall  be  one  inner  court,  outer  court,  side  yard  or  rear  yard 
from  which  a  window  or  ventilating  skylight  opens  from  such  room. 
Such  inner  court,  outer  court  or  side  yard  shall  be  at  least  of  the 
area  and  dimensions  herein  prescribed  for  a  court  in  such  district. 
The  unoccupied  space  within  the  lot  in  front  of  every  part  of  such 
window  shall  be  not  less  than  3  feet,  measured  at  right  angles  thereto. 
Courts,  yards  and  other  open  spaces  if  provided  in  addition  to  those 
required  by  this  section,  need  not  be  of  the  area  and  dimensions 
herein  prescribed.  The  provisions  of  this  section  shall  not  be  deemed 
to  apply  to  courts  or  shafts  for  bathrooms,  toilet  compartments,  hall- 
ways or  stairways. 

SEC.  27.  If  a  building  is  erected  on  the  same  lot  with  another 
building  the  several  buildings  shall,  for  the  purpose  of  this  article, 
be  considered  as  a  single  building.  Any  structure,  whether  inde- 
pendent of  or  attached  to  a  building,  shall  for  the  purpose  of  this 
article  be  deemed  a  building  or  a  part  of  a  building. 

ARTICLE   IV — DEFINITIONS 

SEC.  28.  Definitions.  Certain  words  in  this  ordinance  are  de- 
nned for  the  purposes  hereof  as  follows: 

(a)  Words  used  in  the  present  tense  include  the  future;  the 
singular  number  includes  the  plural  and  the  plural  the  singular;  the 
word  "lot"  includes  the  word  "plot,"  the  word  "building"  includes 
the  word  "structures." 

(&)  The  "width  of  the  street"  is  the  mean  of  the  distances  be- 
tween the  sides  thereof  within  a  block.  Where  a  street  borders  a 
public  place  or  public  park  the  width  of  the  street  is  the  mean  width 
of  such  street  plus  the  width,  measured  at  right  angles  to  the  street 
line,  of  such  public  place  or  public  park. 

(c)  The  "curb  level"  for  the  purpose  of  measuring  the  height 
of  any  portion  of  a  building,  is  the  mean  level  of  the  curb  in  front 
of  such  portion  of  the  building.  But  where  a  building  is  on  a  corner 
lot  the  curb  level  is  the  mean  level  of  the  curb  on  the  street  of  greatest 
width.  If  such  greatest  width  occurs  on  more  than  one  street  the 
curb  level  is  the  mean  level  of  the  curb  on  that  street  of  greatest 
width  which  has  the  highest  curb  elevation.  The  "curb  level"  for 
the  purpose  of  regulating  and  determining  the  area  of  yards,  courts, 
and  open  spaces  is  the  mean  level  of  the  curb  at  that  front  of  the 
building  where  there  is  the  highest  curb  elevation.  Where  no  curb 
elevation  has  been  established  or  the  building  does  not  adjoin  the 
street  the  average  ground  level  of  the  lot  shall  be  considered  the 
curb  level. 


350  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

(d)  A  "street  wall"  of  a  building,  at  any  level,  is  the  wall  or 
part  of  the  building  nearest  to  the  street  line. 

(e)  The  "height"  of  a  building  is  the  vertical  distance  measured 
from  the  curb  level  to  the  finished  ceiling  line  of  the  highest  story 
of  the  building.     Where  a  building  is  a  tenement  house,  hotel  or 
boarding  house  or  dwelling  as  respectively  defined  in  the  State  Tene- 
ment House  Law,  State  Hotel  and  Lodging  House  Law  or  State 
Dwelling  House  Law,  the  height  of  the  building  on  the  street  line 
shall  be  measured  as  prescribed  in  said  law  for  the  measurement  of 
the  height  of  a  tenement  house  hotel,  lodging  house  and  dwelling 
house,  and  such  measurement  shall  be  from  the  curb  level  as  that 
term  is  used  in  said  law. 

(/)  The  "depth  of  a  lot"  is  the  mean  distance  from  the  street 
line  of  the  lot  to  its  rear  line  measured  in  the  general  direction  of 
the  side  lines  of  the  lot. 

(fir)  A  "rear  yard"  is  an  open,  unoccupied  space  on  the  same 
lot  with  a  building  between  the  rear  line  of  the  building  and  the  rear 
line  of  the  lot. 

(h)  The  "depth  of  a  rear  yard"  is  the  mean  distance  between  the 
rear  line  of  the  building  and  the  rear  line  of  the  lot. 

(»)  Lots  or  portions  of  lots  shall  be  deemed  "back  to  back"  when 
they  are  on  opposite  sides  of  the  same  part  of  a  rear  line  common 
to  both  and  the  opposite  street  lines  on  which  the  lots  front  are  parallel 
with  each  other  or  make  an  angle  with  each  other  of  not  over  45 
degrees. 

(/)  A  "court"  is  an  open  unoccupied  space,  other  than  a  rear 
yard,  on  the  same  lot  with  a  building.  A  court  not  extending  to  the 
street  or  to  a  rear  yard  is  an  "inner  court."  A  court  extending  to 
the  street  or  to  a  rear  yard  is  an  "outer  court."  A  court  on  the  lot 
line  extending  through  from  the  street  to  a  rear  yard  or  another 
street  is  a  "side  yard." 

(k)  The  "height  of  a  yard  or  a  court"  at  any  given  level  shall 
be  measured  from  the  lowest  level  of  such  yard  or  court  as  actually 
constructed  or  from  the  curb  level,  if  higher,  to  such  level.  The 
highest  level  of  any  given  wall  bounding  a  court  or  yard  shall  be 
deemed  to  be  the  mean  height  of  such  wall.  Where  a  building  is  a 
tenement  house,  as  defined  in  the  State  Tenement  House  Law,  the 
height  of  a  yard  or  a  court  shall  be  measured  as  prescribed  in  such 
law. 

(/)  The  "least  dimension"  of  a  yard  or  court  at  any  level  is  the 
least  of  the  horizontal  dimensions  of  such  yard  or  court  at  such  level. 
If  two  opposite  sides  of  a  yard  or  court  are  not  parallel  the  hori- 
zontal dimension  between  them  shall  be  deemed  to  be  the  mean  dis- 
tance between  them. 

(m)  The  "length  of  an  outer  court"  at  any  given  point  shall  be 
measured  in  the  general  direction  of  the  side  lines  of  such  court 


ZONING  IN  CANADA  AND  THE  UNITED  STATES        351 

from  the  end  opposite  the  end  opening  on  a  street,  or  a  rear  yard, 
to  such  point. 

(n)  Dwelling.  A  dwelling  is  any  house  or  building  or  portion 
thereof  which  is  occupied  in  whole  or  in  part  as  the  home,  residence 
or  sleeping  places,  either  permanent  or  transient  of  one  or  more 
human  beings. 

(0)  Types  of  Dwellings.  For  the  purpose  of  this  ordinance  the 
types  of  dwellings  are  denned  as  follows: 

Single  family  dwellings 

Two   family   dwellings 

Group  dwellings 

Apartments  or  tenements. 

(/>)  A  Single  Family  Dwelling  is  a  dwelling  for  one  family  alone, 
having  but  one  kitchen  and  within  which  not  more  than  five  persons 
may  be  lodged  for  hire  at  one  time. 

(q)  A  Two  Family  Dwelling  is  a  building  or  structure  having 
under  one  and  the  same  roof  two  single  family  dwellings,  each  dwell- 
ing of  which  shall  have  a  separate  ground  floor  entrance  on  the  out- 
side of  the  building. 

(r~)  A  Group  Dwelling  is  a  building  designed  for  more  than  one 
single  family  dwelling,  each  dwelling  of  which  shall  have  a  ground 
floor  entrance  on  the  outside  of  the  building  and  be  entirely  sepa- 
rated from  each  other  private  dwelling  by  a  vertical  wall. 

(s)  An  Apartment  is  a  tenement  as  defined  under  the  State  Tene- 
ment House  Law. 

(f)  A  Boarding  House  is  a  building  in  which  more  than  five  per- 
sons are  lodged  for  hire  and  in  which  there  are  not  more  than  twenty- 
five  sleeping  rooms. 

(u)  Story.  The  term  "Story"  means  a  vertical  distance  from 
floor  to  ceiling. 

(v}  An  Attic  is  a  story  under  a  sloping  roof  at  the  top  of  the 
building,  the  spring  or  cornice  of  the  main  roof  of  which  is  not  more 
than  two  (2)  feet  above  the  floor  of  said  attic.  An  attic  story  shall 
not  use  more  than  eighty  (80%)  per  cent  of  the  floor  area  of  said 
attic  story  for  rooms,  baths  or  toilets.  Walls  of  rooms  and  baths 
shall  be  not  less  than  four  (4)  feet  in  height.  The  attic  may  be 
used  only  as  permitted  in  the  Alameda  Housing  Code. 

(w)  A  Detached  Building  is  one  that  is  not  less  than  six  (6) 
feet  distant,  measured  horizontally  from  any  portion,  except  the 
cornice  or  eaves,  of  any  other  building. 

(;r)  A  Public  Laundry  is  any  building  or  grounds  used  for  laun- 
dering for  hire  in  which  more  than  two  persons  are  engaged  in  the 
business  thereof., 

All  words  and  phrases  not  otherwise  defined  in  this  ordinance 
shall  be  interpreted  as  defined  in  the  State  Tenement  Housing  Act 
and  the  Alameda  Housing  Code. 


352  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ARTICLE   V — GENERAL    AND    ADMINISTRATIVE 

SEC.  29.  Interpretation:  Purpose.  In  interpreting  and  applying 
the  provisions  of  this  ordinance,  they  shall  be  held  to  be  the  minimum 
requirements  adopted  for  the  promotion  of  the  public  health,  safety, 
comfort,  convenience  and  general  welfare.  It  is  not  intended  by  this 
ordinance  to  repeal  or  interfere  with  any  existing  provision  of  law 
or  ordinance  or  any  rules,  regulations  or  permits  previously  adopted 
or  issued  or  which  may  be  adopted  or  issued  pursuant  to  law  relating 
to  the  use  of  buildings  or  premises;  nor  is  it  intended  by  this  ordi- 
nance to  interfere  with  any  easements,  covenants,  or  other  agree- 
ments between  parties;  provided,  however,  that  where  this  ordinance 
imposes  a  greater  restriction  upon  the  use  of  buildings  or  premises 
or  upon  height  of  buildings  or  requires  larger  yards,  courts  or  other 
open  spaces  than  are  imposed  or  required  by  such  existing  provisions 
of  law  or  ordinances  or  by  such  rules,  regulations  or  permits  or  by 
such  easements,  covenants  or  agreements,  then,  and  in  that  case,  the 
provisions  of  this  ordinance  shall  control. 

SEC.  30.  Unlawful  Use:  Certificates  of  Occupancy.  It  shall  be 
unlawful  to  use  or  permit  the  use  of  any  building  or  premises  or  part 
thereof  hereafter  created,  erected,  changed  or  converted  wholly  or 
partly  in  its  use  or  structure  until  a  certificate  of  occupancy  to  the 
effect  that  the  building  or  premises  or  the  part  thereof  so  created, 
erected,  changed  or  converted  and  the  proposed  use  thereof  conform 
to  the  provisions  of  this  ordinance  shall  have  been  issued  by  the 
building  department.  In  the  case  of  such  premises  or  buildings  it 
shall  be  the  duty  of  the  building  department  to  issue  a  certificate  of 
occupancy  within  ten  days  after  a  request  for  the  same  shall  be  filed 
in  its  office  by  any  owner  of  a  building  or  premises  affected  by  this 
ordinance,  provided  said  building  or  premises  or  the  part  thereof  so 
created,  erected,  changed  or  converted,  and  the  proposed  use  thereof, 
conforms  with  all  the  requirements  herein  set  forth.  A  temporary 
certificate  of  occupancy  for  a  part  of  a  building  may  be  issued  by 
the  building  department.  Upon  written  request  of  the  owner  the 
building  department  shall  is^ue  a  certificate  of  occupancy  for  any 
building  or  premises  existing  at  the  time  of  the  passage  of  this  ordi- 
nance certifying  after  inspection  the  use  of  the  building  or  premises 
and  whether  such  use  conforms  to  the  provisions  of  this  ordinance. 

SEC.  31.  Enforcement,  Legal  Procedure,  Penalties.  This  ordi- 
nance shall  be  enforced  by  the  Building  Department,  health  inspec- 
tor, health  officer,  city  engineer,  chief  of  police,  fire  marshal,  or  such 
other  officer  as  may  be  designated  by  the  City  Charter  or  by  ordinance 
of  the  City  of  Alameda.  Any  person,  firm  or  corporation  violating 
any  of  the  provisions  of  this  ordinance  shall  be  guilty  of  a  misde- 
meanor and  upon  conviction  thereof  shall  be  punishable  by  a  fine  of 
not  more  than  three  hundred  ($300.00)  dollars,  or  by  imprisonment 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         353 

in  the  city  jail  for  a  period  of  not  more  than  six  (6)  months  or  by 
both  fine  and  imprisonment.  Each  such  person,  firm  or  corporation 
shall  be  deemed  guilty  of  a  separate  offence  for  each  and  every  day 
during  any  portion  of  which  any  violation  of  any  provision  of  this 
ordinance  is  committed,  continued  or  permitted  by  such  person,  firm 
or  corporation  and  shall  be  punishable  accordingly. 

SEC.  32.  Building  Permits.  No  building  permit  shall  be  issued 
by  the  Building  Department  of  the  City  for  the  erection  or  alteration 
of  any  building  or  structure  contrary  to  the  provisions  of  this  ordi- 
nance. 

Each  application  for  a  building  permit  hereafter  filed  with  the 
City  shall  be  accompanied  by  a  statement  as  to  the  use,  height  and 
area  of  the  building  applied  for,  on  a  blank  to  be  furnished  by  the 
City,  on  which  shall  also  be  shown  an  accurate  block  plan  of  the 
location  of  the  building  on  the  lot,  drawn  to  a  scale  of  16  feet  to  the 
inch. 

SEC.  33.     Changes  Within  Districts. 

(a)  Changes  and  Reclassification  within  Residence  Districts: 
Any  portion  of  a  residence  district  may  be  changed  from  Class  I  to 
Class  II,  or  vice  versa,  in  the  manner  following :  A  petition  therefor, 
describing  the  change  desired  and  signed  by  the  owners  of  not  less 
than  twenty-five  (25)  per  cent  of  the  area  of  real  property  situated 
within  a  radius  of  two  hundred  (200)  yards  of  the  particular  portion 
proposed  to  be  changed,  must  be  filed  with  the  City  Clerk.  The 
petition  may  be  accompanied  by  the  plans  or  a  sketch  of  such  build- 
ing or  structure,  if  any,  which  is  proposed  to  be  erected  in  the  place 
desired  to  be  redistricted. 

Immediately  upon  receipt  of  such  a  petition,  the  City  Clerk  shall 
cause  to  be  posted  along  that  portion  of  all  the  main  streets  within 
the  radius  aforementioned,  and  at  least  one  (i)  on  each  side  of  each 
block  or  fraction  of  block  therein,  notices  of  the  filing  of  said  peti- 
tion; said  notices  shall  be  headed  "Notices  of  Redistricting"  in  one 
(i)  inch  type  or  larger,  briefly  describing  the  change  desired  and 
notifying  all  persons  having  objections  to  appear  before  the  next 
meeting  of  the  City  Council,  giving  date  of  same,  and  show  cause 
why  such  proposed  change  should  not  be  made;  provided,  that  at 
least  three  (3)  of  said  notices  shall  be  posted  on  the  side  of  the  block 
in  which  the  change  is  proposed,  and  three  (3)  on  the  side  of  the 
block  opposite  thereto ;  provided  further,  all  of  said  notices  shall 
be  posted  at  least  seven  days  before  the  time  of  said  hearing. 

At  any  time  prior  to  said  hearing  any  owner  of  real  property 
situated  within  the  radius  aforesaid,  may  make  written  protests  or 
objections  to  the  proposed  change,  and  deliver  them  to  the  City  Clerk. 
At  the  time  fixed,  the  City  Council  shall  proceed  to  hear  and  pass 
upon  the  protests  or  objections  so  made,  and  its  decision  shall  be 
final  and  conclusive;  provided,  however,  the  Council  may  adjourn 


354  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

such  hearings  from  time  to  time  and  may  refer  the  matter  to  the  City 
Planning  Commission,  Chamber  of  Commerce,  Merchants  Association, 
or  other  civic  or  improvement  organizations,  for  an  opinion  and  re- 
port on  the  proposed  change,  before  rendering  its  decision. 

Each  petition  or  protest  aforementioned  shall  have  an  affidavit 
annexed,  certifying  that  each  signature  thereon  is  the  bona-fide  signa- 
ture of  the  person  whose  name  it  purports  to  be.  Such  affidavit  may 
be  made  and  subscribed  before  the  City  Clerk  or  a  Notary  Public. 

(&)  Reclassification  Within  Business  Districts — Any  portion  of 
a  Business  or  Public  Use  District  may  be  changed  and  reclassified 
within  such  district,  by  petition,  notice  and  hearing  in  the  same  man- 
ner as  provided  for  changes  and  reclassification  within  Residence 
Districts. 

(c)  Reclassification  Within  Industrial  Districts — Any  portion  of 
an  Industrial  District  may  be  changed  and  reclassified  within  such 
district,  by  petition,  notice  and  hearing  in  the  same  manner  as  pro- 
vided for  changes  and  reclassification  within  Residence  Districts; 
provided,  however,  the  decision  of  the  Council  in  such  case  shall  be 
expressed  by  ordinance,  which  ordinance  shall  be  subject  to  the 
referendum. 

SEC.  34.     Changing  from  One  Kind  of  District  to  Another. 

(a)  Any  portion  of  a  Residence  District,  Business  District,  or 
Industrial  District  may  be  changed  and  transferred  from  one  to  the 
other  of  said  districts  of  any  classification  thereof  by  petition,  notice 
and  hearing  in  the  same  form  and  manner  as  provided  for  changes 
and  reclassification  within  Residence  Districts;  provided,  however, 
the  decision  of  the  Council  shall  be  expressed  by  ordinance,  which 
ordinance  shall  be  subject  to  the  referendum. 

(6)  Changes  in  Height  Districts. 

Any  portion  of  a  Height  District  may  be  changed  and  reclassified 
by  petition,  notice  and  hearing  in  the  same  form  and  manner  as  pro- 
vided for  changes  and  reclassification  within  Residence  Districts; 
provided,  however,  the  decision  of  the  Council  shall  be  expressed  by 
ordinance,  which  ordinance  shall  be  subject  to  the  referendum. 

(c)  Districts  defined.     For  the  purposes  of  changing  and  redis- 
tricting  any  portion  of  a  Use  or  Height  District,  as  herein  provided, 
every  portion  of  such  district  which   lies  separate  and  apart   from 
other  portions  thereof  shall  be  treated  as  a  separate  district. 

(d)  Further  amendments  or  changes.     Any  other   amendments, 
alterations  or  changes  in  Use  or  Height  districts,  not  herein  provided 
for,  shall  be  made  by  ordinance. 

SEC.  35.     Official  Map  for  Use  and  Height  Districts. 

The  City  Clerk  shall  keep  on  file  in  his  office  an  official  map  of 
the  Use  and  Height  Districts  herein  provided  for,  showing  the  char- 
acter,  extent  and  area  of   each   respective   district.     In   every 
where  the  dividing  line  of  a  district  or  portion  of  a  district  is  within 


ZONING  IN  CANADA  AND  THE  UNITED  STATES         355 

the  lines  of  any  city  block,  he  shall  indicate  by  figures  on  said  official 
map  the  exact  location  of  such  district  lines.  He  shall  also  indicate 
all  alterations,  amendments  or  changes  hereafter  made  in  any  of  said 
districts  or  district  lines  by  showing  thereon  the  new  lines  in  a  dif- 
ferent color  from  the  lines  in  which  said  map  was  originally  drawn 
or  printed,  together  with  a  proper  explanatory  legend  giving  the  date 
of  each  such  change  and  amendment.  Said  map  shall  be  certified 
by  him  as  being  the  original  Zone  Map  of  the  City  of  Alameda. 

SEC.  36.     Completion  and  Restoration,  of  Existing  Buildings. 

(a)  Nothing  herein  contained  shall  require  any  change  in  the 
plans,  construction  or  designated  use  of  a  building  for  which  a  build- 
ing permit  has  been  heretofore  issued,  or  for  which  a  permit  has 
been  applied  and  plans  for  which  are  on  file  with  the  building  de- 
partment at  the  time  of  the  passage  of  this  ordinance,  and  a  permit 
for  the  erection  of  which  is  issued  after  the  passage  of  this  ordi- 
nance, and  the  construction  of  which  in  either  case  shall  have  been 
diligently  prosecuted  within  six  months  of  the  date  of  such  permit, 
and  the  ground  story  framework  of  which,  including  the  second 
tier  of  beams,  shall  have  been  completed  within  said  six  months,  and 
which  entire  building  shall  be  completed  according  to  such  plans  as 
filed  within  two  years  of  the  date  of  the  passage  of  this  ordinance. 

(&)  Nothing  in  this  ordinance  shall  prevent  the  restoration  of  a 
building  less  than  forty  (40)  per  cent  destroyed  by  fire,  explosion, 
act  of  God  or  act  of  the  public  enemy  or  prevent  the  continuance 
of  the  use  of  such  building  or  part  thereof  as  such  use  existed  at 
the  time  of  such  destruction  of  such  building  or  part  thereof.  Noth- 
ing in  this  ordinance  shall  prevent  the  restoration  of  a  wall  declared 
unsafe  by  the  superintendent  of  buildings  or  by  a  board  of  survey. 

SEC.  37.  Individual  Enactment  of  Sections.  It  is  hereby  de- 
clared to  be  the  intention  of  the  City  Council  to  enact  each  and  every 
section,  paragraph,  clause  or  phrase  of  this  ordinance  irrespective 
of  the  enactment  of  every  other  section,  paragraph,  clause  or  phrase 
herein  contained. 

SEC.  38.  Repeal  of  Certain  Other  Ordinances.  Ordinance  No. 
125,  N.  S.  entitled  "An  Ordinance  establishing  a  Residence  District 
and  also  an  Industrial  Zone  in  the  City  of  Alameda  and  providing 
regulations  for  both"  is  hereby  repealed,  to  take  effect  thirty  (30) 
days  after  the  final  passage  of  this  ordinance. 

SEC.  39.  When  Effective.  This  ordinance  shall  take  effect  thirty 
(30)  days  after  its  final  passage. 

SEC.  40.  Printing  for  Distribution.  The  City  Clerk  shall  cause 
one  thousand  copies  of  this  ordinance  to  be  printed  for  distribution. 


PART  V 
CITY  PLANNING  FINANCE 

Importance  of  Financial  Considerations. — One  of  the 
essential  parts  of  the  planning  of  the  public  features  of  a  city 
is  the  devising  of  methods  of  financing  their  construction.  The 
problem  of  raising  sufficient  money  to  build  the  public  works 
necessary  to  the  prosperity  and  well-being  of  the  modern  city 
is  a  difficult  one  and  this  difficulty  is  constantly  increasing.  In 
the  earlier  period  of  our  municipal  history,  the  authorities  were 
expected  to  do  little  more  than  keep  the  peace,  leaving  it  to  the 
citizens  themselves  to  obtain  most  of  the  facilities  of  city  life. 
Nowadays  these  facilities  have  greatly  increased  in  number  and 
cost,  and  the  citizen  looks  more  and  more  to  the  city  authorities 
to  furnish  them.  In  comparatively  recent  times  the  city 
dweller  obtained  daylight,  air,  and  outdoor  recreation  from  his 
own  land  or  that  of  his  neighbors ;  now  he  demands  boulevards, 
parks,  playgrounds  and  recreation  fields  supplied  by  the  city. 
Formerly,  to  go  to  and  from  his  business,  he  was  satisfied  with 
the  leisurely  horse  car  line,  built  and  managed  at  comparatively 
small  expense  by  private  enterprise;  he  obtained  water  from 
his  own  well  or  a  private  company,  and  at  night  burned  a  kero- 
sene lamp ;  now  he  demands  a  subway  express,  electricity,  pub- 
lic water  in  superabundance,  and  the  countless  necessities  and 
luxuries  that  have  come  to  be  considered  public  utilities;  and  if 
private  enterprise  does  not  supply  these  needs  at  a  minimum 
price,  he  clamors  for,  and  obtains  the  use  of,  public  money  for 
the  purpose.  These  changed  conditions  have  greatly  increased 
the  amount  of  money  that  the  modern  city  must  raise  from  its 
citizens,  and  made  the  distribution  of  the  heavy  burden  a  mat- 
ter of  grave  concern. 

Sources  of  Municipal  Revenue. — There  are  three  main 
sources  from  which  the  modern  city  obtains  its  revenue: 

357 


358  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

municipal  property  and  enterprises,  subventions  from  the  cen- 
tral government  and  general  taxation.  In  addition,  special  or 
local  benefit  assessments  are  levied,  the  proceeds  to  be  used  only 
in  improving  the  property  assessed.  Taxation,  everywhere,  is 
the  principal  source  of  general  revenue.  In  Europe,  especially 
in  Germany,  municipal  property  and  undertakings  yield  a  much 
greater  proportion  of  the  whole  than  with  us,  and  subventions, 
so  rare  here,  are  common.  Local  or  benefit  assessment  is 
resorted  to  more  in  this  country  than  abroad.  Municipal  taxa- 
tion in  Germany  is  levied  principally  on  incomes  from  all 
sources,  and  in  England,  until  recently,  local  taxes  on  real  estate 
were  assessed  exclusively  on  its  rental  values;  so  that  unused 
land,  in  these  countries,  was  not  taxed.  There  is  now  in  Ger- 
many and  there  was  in  England  for  a  few  years  *  a  small 
special  tax  on  unused  realty.  In  this  country  the  common  form 
of  local  taxation,  the  proceeds  of  which  are  available  for  any 
municipal  purpose,  is  the  general  property  tax,  levied  at  the 
same  rate  on  all  property  real  and  personal,  but  in  practice  per- 
sonal property,  so  easily  concealed  in  most  of  its  forms,  escapes 
taxation  to  a  considerable  extent,  so  that,  with  us,  perhaps  75 
per  cent  of  municipal  taxation  falls  upon  real  estate.  In  some 
jurisdictions  by  law,  and  in  others  in  practice,  unused  land, 
and  land  used  for  agriculture,  within  city  limits,  is  taxed  at  a 
much  lower  rate  than  other  realty  in  the  city.  The  incidence 
of  taxation  affects  the  relative  values  of  property,  the  uses  to 
which  it  can  be  put  with  profit,  and,  in  this  way,  the  city  plan. 
Thus,  for  instance,  if  unused  realty  or  real  estate  used  for  agri- 
culture is  not  taxed,  or  is  assessed  at  a  much  lower  rate  than 
other  land,  it  will  more  often  be  held  for  a  speculative  advance. 
General  Taxation. — The  constitutions  or  laws  of  many 
of  the  states  in  this  country  require  that,  in  levying  the  general 
property  tax,  a  uniform  rate  shall  be  fixed  for  all  sorts  of  prop- 
erty. The  determination  of  the  rate  from  year  to  year  is  usu- 
ally left  to  the  city  authorities.  In  this  country,  in  order  to 
guard  against  too  heavy  taxation,  the  constitution  or  law  of  the 

1  "Undeveloped  Land  Duty."  This,  and  an  "Increment  Value  Duty" 
were  both  imposed  under  the  "Finance  (1909-10)  Act,  1910"  (10  Edw. 
7,  ch.  8). 


CITY  PLANNING  FINANCE  359 

state  or  charter  of  the  city  usually  fixes  the  maximum  amount, 
or  the  maximum  rate,  of  the  tax ;  while  in  Europe  the  rate  and 
amount  of  the  various  taxes,  in  so  far  as  locally  determined,  is 
usually  subject  to  readjustment  by  the  state  or  national  authori- 
ties. Some  check  upon  the  amount  that  a  city  can  raise  by 
taxation  in  a  given  period  is  generally  regarded  as  necessary, 
but  the  fixing  of  the  proper  maximum  is  a  difficult  matter.  An 
unduly  high  rate  of  taxation  makes  both  living  and  business 
expenses  excessive;  but  too  low  a  rate,  making  it  impossible 
for  the  city  to  furnish  the  streets,  docks,  public  utilities  and 
other  necessities  and  aids  to  healthful  and  contented  living, 
the  prosperous  conduct  of  private  business  and  the  normal 
growth  of  the  city  upon  which  business  and  therefore  com- 
fortable living  conditions  are  dependent,  is  equally  unfortunate. 
The  fixing  of  a  maximum  rate  to  be  applied  under  all  circum- 
stances to  all  the  cities  of  a  state  is,  as  compared  with  the 
European  method  of  regulation,  a  crude  way  of  settling  in- 
tricate questions;  such  a  maximum,  if  too  high,  is  of  no  effect, 
and  if  too  low,  is  disastrous.  We  have  not  in  this  country 
developed  the  administrative  machinery  for  the  use  of  the 
European  method,  nor  indeed  have  we  come  to  believe  that  we 
should  adopt  it.  If,  under  these  circumstances,  we  impose  a 
maximum,  it  should  be  a  liberal  one.  The  risk  of  the  possible 
abuse  of  a  necessary  power  is  never  a  sufficient  reason  for 
limiting  it  to  such  an  extent  as  to  make  its  proper  use  impos- 
sible. 

Municipal  Borrowing. — It  is  not  wise  in  all  cases  to  adopt 
the  policy  of  limiting  the  expenditures  of  the  year  to  the  amount 
that  can  safely  be  raised  by  taxation  during  that  year.  Such 
a  policy  would  make  it  impossible  to  construct  needed  improve- 
ments and  would  often  deprive  the  city  and  its  citizens  of  neces- 
sary facilities  and  even  result  in  financial  loss.  Where  an  im- 
provement is  permanent  or  will  remain  useful  for  many  years, 
the  sum  needed  should  be  borrowed,  to  be  repaid  gradually. 
This  is  just;  the  future  receives  its  share  of  the  benefit  and 
should  pay  its  share  of  the  cost.  It  is  also  expedient;  the  im- 
provement will,  in  well-being  or  financial  gain,  return  year  by 
year  more  than  interest  and  amortization  charges  on  its  cost; 


360  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  present  cannot  pay  for  all  the  permanent  improvements  that 
ought  to  be  constructed,  and  will  leave  them  unbuilt  rather  than 
shoulder  the  burden.  The  correct  principle  in  improvements  of 
this  sort  is  that  the  indebtedness  incurred  shall  be  funded,  but 
in  every  case  provision,  by  sinking  fund  or  otherwise,  should 
be  made  for  the  payment  of  the  loan  during  the  period  of  the 
usefulness  of  the  work. 

The  Debt  Limit. — The  risk  of  excessive  borrowing  is 
more  insidious  and  therefore  much  greater  than  that  of  ex- 
cessive taxation.  In  Europe  this  danger  is  guarded  against  by 
state  or  national  supervision  and  control  of  municipal  loans. 
In  this  country,  to  attain  this  end,  the  state  by  constitutional 
provision  or  statute  imposes  a  debt  limit  upon  cities.  In  most 
cities  in  the  United  States  there  is  a  general  limit,  varying  all 
the  way  from  one  and  one-half  to  ten  per  cent,  of  the  assessed 
valuation  of  real  estate  within  the  city;  but,  without  regard  to 
this  limit,  indebtedness  may  be  contracted  for  many  purposes, 
and  there  are  easy  methods  of  increasing  the  percentage.  Prob- 
ably there  are  few  cities  where  the  total  indebtedness  may  not 
exceed  five  per  cent,  of  the  assessed  valuation,  and  many  where 
it  may  materially  exceed  ten  per  cent.2 

In  the  effort  to  prevent  extravagance  and  dishonesty,  care 
must  be  taken  that  the  debt  limit,  like  the  tax  limit,  is  not  fixed 
at  too  low  a  rate.  In  municipal  as  well  as  in  private  business 
an  extensive  plant  and  equipment  are  becoming  more  and  more 
essential  to  economy  and  efficiency;  and  municipalities,  like 
other  corporations,  can  obtain  the  money  for  such  uses  only 
by  borrowing  for  the  purpose.  The  power  to  borrow  ade- 
quately, like  the  power  to  impose  adequate  taxes,  although 
undoubtedly  subject  to  abuse,  is  essential  to  the  conduct  of  the 
affairs  of  the  modern  city.  The  democratic  remedy  for  the 
possible  abuse  of  needful  powers  is  not  to  abolish  or  unduly 
curtail  them,  but  by  active  participation  in  government  to  secure 
their  proper  use.  Faulty  as  it  is,  democracy  is  the  best  form 
of  government  we  know,  and  local  self  government,  with  the 
necessary  powers  to  make  it  effective,  is  essential  to  it. 

M'or  a   fuller  statement  on  this  point  see  "City  Planning,"  edited  by 
John  Nolen,  p.  391. 


CITY  PLANNING  FINANCE  361 

Not  all  loans  are  obtained  for  the  purpose  of  making  durable 
improvements.  In  every  city  it  is  customary  to  borrow  for  the 
purpose  of  meeting  certain  current  expenses  that  will  later  be 
taken  care  of  in  other  ways.  If  this  is  not  done,  delays  in  con- 
struction are  likely  to  occur,  most  expensive  to  the  city  and  to 
land  owners.  This  is  especially  true  with  relation  to  the  laying 
out  of  streets,  with  their  sewers  and  other  accessories  needed 
for  building  development.  Without  them  houses  cannot  be 
erected  on  abutting  land,  the  owners  must  carry  it  at  a  heavy 
expense  instead  of  selling  it  at  a  profit,  and  the  city  must  lose 
several  years'  taxes  on  improvements  not  yet  built.  The  entire 
cost  to  the  city  of  this  construction  may  and  should  be  a  charge 
on  the  property  improved,  to  be  speedily  repaid  by  the  land 
owner.  Certainly  such  a  lien  is  a  safe  and  ample  security  for 
such  a  loan.  Not  only  should  the  city  be  allowed  to  borrow 
for  such  purposes,  but  the  loans  should  be  outside  the  debt  limit. 

Self-Supporting  Enterprises. — Self-supporting  public  en- 
terprises should  also  be  outside  the  debt  limit.  As  soon  as, 
for  instance,  a  municipal  street  railway  or  gas  plant  is  on  such 
a  basis  as  permanently  to  be  able  to  pay  interest  on  the  cost  and 
a  reasonable  sum  toward  amortization  and  renewals,  the  money 
thus  employed  should  no  longer  be  regarded  as  a  debt  but  recog- 
nized as  an  investment,  and  the  amount  so  employed  deducted 
in  calculating  the  indebtedness  under  the  debt  limit.3 

1  Such  loans  are  as  a  rule  outside  the  debt  limit  in  Canada.  See  for 
instance  R.  S.  Manitoba  1913,  Municipal  Institutions  (ch.  133),  part  VTII, 
Local  Improvements,  sec.  561;  Saskatchewan  Stat.,  1915,  ch.  16;  1916, 
ch.  19.  Indebtedness  to  acquire  self-sustaining  enterprises  is  also,  to 
some  extent,  outside  the  debt  limit  of  the  city  and  county  of  .Philadelphia 
(Penn.  Const.,  art.  IX,  sec.  8)  and  of  Virginia  cities  (Va.  Const.,  art. 
VIII,  sec.  127). 

The  city  that  perhaps  has  found  such  a  law  most  useful  is  New  York. 
The  provision  is  in  the  constitution  of  the  State  and  is  as  follows : 

Art.  VIII,  sec.  10:  .  .  .  "Any  debt  hereafter  incurred  by  the  City  of 
New  York  for  a  public  improvement  owned  or  to  be  owned  by  the  city, 
which  yields  to  the  city  current  net  revenue,  after  making  any  necessary 
allowance  for  repairs  and  maintenance  for  which  the  city  is  liable,  in 
excess  of  the  interest  on  said  debt  and  of  the  annual  installments  neces- 
sary for  its  amortization,  may  be  excluded  in  ascertaining  the  power 
of  said  city  to  become  otherwise  indebted,  provided  that  a  sinking  fund 
for  its  amortization  shall  have  been  established  and  maintained  and  that 
the  indebtedness  shall  not  be  so  excluded  during  any  period  of  time  when 
the  revenue  aforesaid  shall  not  be  sufficient  to  equal  the  said  interest  and 
amortization  installments,  and  except  further  that  any  indebtedness  here- 


362  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Avoiding  the  Debt  Limit. — After  the  city  has  reached 
its  debt  limit,  it  may  still  make  improvements  or  acquire  prop- 
erty if  only  it  does  not  enter  into  any  obligation  to  pay  for 
them.  This  it  may  accomplish  by  constituting  these  payments 
a  charge  on  a  special  fund  to  be  created  or  on  special  property 
to  be  acquired.  Thus  the  city  may  construct  a  public  work  to 
be  paid  for  solely  by  local  assessments  on  private  property  bene- 
fited, the  assessments  usually  being  a  lien  on  this  property ;  4  or 
make  extensions  of  a  public  utility,  the  cost  to  be  paid  solely 
out  of  net  income;5  or,  if  it  can  make  whatever  initial  pay- 
ment may  be  required  out  of  current  income,  it  may  accept 
property  subject  to  a  mortgage  which  it  does  not  assume,6  or 
acquire  property  to  be  paid  for,  if  at  all,  in  installments.7  In 
the  two  latter  cases,  the  city  will  lose  the  property  if  the  mort- 
gage or  the  installments  are  not  paid  when  due,  but  in  no  case 
is  it  under  any  obligation  to  meet  them.  In  all  these  cases  the 
city,  by  pledging  its  credit,  could  accomplish  its  purpose  more 
cheaply;  but  if  the  improvement  is  needed  at  once  it  may  be 

tofore  incurred  by  the  City  of  New  York  for  any  rapid  transit  or  dock 
investment  may  be  so  excluded  proportionately  to  the  extent  to  which 
the  current  net  revenue  received  by  said  city  therefrom  shall  meet  the 
interest  and  amortization  installments  thereof,  provided  that  any  increase 
in  the  debt  incurring  power  of  the  City  of  New  York  which  shall  result 
from  the  exclusion  of  debts  heretofore  incurred  shall  be  available  only 
for  the  acquisition  or  construction  of  properties  to  be  used  for  rapid 
transit  or  dock  purposes.  The  legislature  shall  prescribe  the  method 
by  which  and  the  terms  and  conditions  under  which  the  amount  of  any 
debt  to  be  so  excluded  shall  be  determined,  and  no  such  debt  shall  be 
excluded  except  in  accordance  with  the  determination  so  prescribed.  The 
legislature  may  in  its  discretion  confer  appropriate  jurisdiction  on  the 
appellate  division  of  the  Supreme  Court  in  the  first  judicial  department 
for  the  purpose  of  determining  the  amount  of  any  debt  to  be  so  excluded. 
No  indebtedness  of  a  city  valid  at  the  time  of  its  inception  shall  hereafter 
become  invalid  by  reason  of  the  operation  of  any  of  the  provisions  of  this 
Section.  .  .  ." 

The  legislature  did  pass  an  act   (Laws,  1910,  ch.  276)   so  prescribing 
methods,  and  giving  the  Court  referred  to.  jurisdiction.     For  a  cas< 
struing  this  paragraph  and  law  see  In  re  Debt  Limit,  123  N.  Y.  Supp.  860. 
v.  Minnesota,  63  Minn.  125   (l£ 

•Winston  v.  Spokane,  12  Wash.  524  (1895);  Lexington  v.  Lafayette 
Bank.  105  Mo.  671  (1901);  Evans  v.  Holman,  244  111.  596  (1910). 

•Burnham  v.  Wilwaukee,  98  Wis.  128  (1897);  contra,  Browne  v. 
Boston,  179  Mass.  321  (1901)  ;  Evans  v.  Holman.  244  Ills.  596  (1910). 

T  Cases  cited  above;  contra,  Reynolds  v.  Waterville,  92  Maine,  202 
(1898).  See  generally  on  this  subject,  Pond,  Public  Utilitifs,  ch.  VI 
(Bobbs- Merrill  Co.,  Indianapolis,  1913). 


CITY  PLANNING  FINANCE  363 

worth  the  added  expenditure  necessary  to  obtain  it  without 
delay. 

Special  Assessments.8 — The  planning  and  construction 
of  streets  and  other  public  features  are  undoubtedly  of  advan- 
tage to  the  entire  city.  In  many  jurisdictions  the  cost  of  such 
features  is  met  by  a  tax  on  the  city  as  a  whole.  But  the  land 
in  the  neighborhood  of  an  improvement,  in  addition  to  the 
general  gain,  often  receives  a  special  benefit  by  reason  of  this 
construction.  This  result  of  public  works  wisely  planned  and 
intelligently  carried  out  is  perhaps  most  evident  in  the  case  of 
land  abutting  on  a  newly  built  street.  This  land,  in  addition  to 
the  privileges  in  the  street  which  it  shares  with  all  city  land, 
receives  special  benefits  from  it,  such  as  the  right  to  light,  air, 
access  and  view,  which  greatly  and  immediately  raise  its  market 
value.  The  law  and  custom  of  all  civilized  countries  respects 
these  privileges ;  our  law  recognizes  them  as  property  rights  in 
the  street  appurtenant  to  and  running  with  the  abutting  land  of 
which  the  owner  cannot  be  deprived  without  compensation.9 

It  is  becoming  more  and  more  the  rule,  the  world  over,  to 
make  a  special  assessment  against  this  land  to  meet  the  cost  of 
the  street.  The  justice  and  expediency  of  this  course  is  evident. 
General  taxation  is  imposed  upon  all  because  it  is  for  the  bene- 
fit of  all.  To  the  extent  that  a  new  street  or  other  improvement 
is  of  special  advantage  to  neighboring  property  owners,  it  is 
unfair  to  assess  its  cost  upon  the  property  owners  of  the  city 
as  a  whole;  and  it  is  only  right  and  just  that  to  this  extent  the 
neighboring  land  owners  should  pay  for  the  gain  they  receive. 
Any  other  course  would  enrich  them  at  the  general  expense. 
Care,  however,  should  be  taken  not  to  levy  a  local  tax  in  excess 

'Also  called  local  or  benefit  assessments.  Such  an  assessment  has 
been  defined  as  "a  compulsory  contribution  paid  once  for  all  to  defray 
the  cost  of  a  special  improvement  to  property  undertaken  in  the  public 
interest  and  repaid  to  the  government  in  proportion  to  the  special  benefits 
accruing  to  the  property  named."  (Quarterly  Journal  of  Economics, 
April,  1893).  There  are  many  other  sorts  of  assessment,  such  as  the 
imposition  on  the  owner  of  realty  of  the  cost  of  cleaning  the  sidewalk  of 
ice  and  snow,  or  of  repairing  the  pavement  in  front  of  his  land,  or  the 
levying  on  him  of  the  price  of  water  supplied,  etc.,  etc.  It  is  not,  how- 
ever, any  of  these,  but  only  special  or  benefit  assessments  that  are  here 
considered. 

*  For  a  fuller  statement  of  the  law  on  this  subject  see  p.  1/3. 


364  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

of  the  local  gain.  The  improvement  of  a  residential  street  for 
through  travel  might  often  prove  to  be  a  detriment  to  the 
abutter. 

The  history  of  benefit  assessment  is  a  long  one.  In  Europe 
the  practice  goes  back  at  least  to  the  feudal  period,  but  it  is 
only  in  comparatively  recent  times  that  it  has  begun  to  come 
into  common  use  in  European  countries.  Thus  in  England  local 
statutes  authorizing  its  use  began  to  be  passed  about  1900  and 
now  this  procedure  is  authorized  as  a  part  of  the  general  "Hous- 
ing, Town  Planning,  etc.,  Act"  passed  in  1909.  In  France 
local  assessment  to  provide  payment  for  various  public  works 
was  authorized  as  a  part  of  a  general  statute  passed  in  1807, 
but  the  procedure  was  so  cumbrous  that  this  method  of  financ- 
ing improvements  has  not  been  employed  in  France  until  very 
recently.10  In  Germany  for  many  years  there  have  been  pro- 
visions for  local  assessments  in  the  laws  of  the  different  states. 
In  this  country  the  practice,  copied  from  the  custom  and  law 
of  London,  was  introduced  in  early  colonial  times,  but  the 
period  of  its  active  use  did  not  begin  until  about  1813;  and  it 
is  now  the  prevailing  system  here  and  in  Canada. 

Limiting  the  Amount  of  Local  Assessments. — Local 
assessment  is  based  upon  the  principle  that  the  land  owner 
should  repay  the  special  benefit  he  derives  from  a  public  work.11 
In  some  cities  in  this  country  only  a  certain  proportion  of  the 
cost  of  a  new  street,  or  its  cost  only  to  the  extent  of  a  certain 
proportion  of  the  special  benefit  it  brings  to  abutters,  is  col- 
lected from  them.  This  latter  practice  is  contrary  to  the  prin- 
ciple of  local  assessment.  It  is  unjust  that  the  abutter  should 
pay  more  than  the  amount  of  his  peculiar  gain,  but  he  should 
certainly  pay  tr>  the  extent  of  that  gain  or  the  other  tax  payers 


**  See  the   report  accompanying   the   bill   to   amend   the   expropriation 
law  of  May  3,  1841,  Chamber  of  Deputies,  loth  Legislature,  extraordinary 
ion  of   1911,  No.   1369. 

"  In  some  states  it  is  held  that  the  question  whether  such  an  assess- 
ment is  in  any  particular  case  in  excess  of  the  special  benefit,  is  for  the 
:  in  otnen  that  the  decision  of  the  administrative  authorities  on 
that  point  cannot  as  a  rule  l>e  so  reviewed.  See  for  a  fuller  <lisi 
of  this  point.  Page  and  Jones,  Taxation  h\  Assessment  (1909),  sec.  666 
and  ff. 


CITY  PLANNING  FINANCE  365 

will  be  compelled  to  pay  for  a  portion  of  the  benefit  which  he 
has  received. 

Another  method  of  limiting  the  amount  of  the  betterment 
tax  is  to  provide  that  it  shall  in  no  case  exceed  a  certain  per- 
centage— often  fifty  per  cent. — of  the  market  value  of  the  land 
and  buildings,  or  of  the  land  alone,  upon  which  it  is  levied. 
The  hardship  which  this  limitation  seeks  to  obviate  is  evident. 
Unlike  ordinary  taxation,  a  special  assessment  occurs  at  irregu- 
lar intervals  and  may  bear  any  ratio,  however  great,  to  the 
value  of  the  property  on  which  it  is  assessed.  The  assessment 
must  also  be  met  promptly;  if  this  is  not  done  mortgagees  will 
foreclose,  or  the  city  will  soon  place  a  lien  on  the  property  and 
sell  it.  For  these  reasons,  in  spite  of  the  fact  that  a  local 
assessment  is  merely  a  payment  for  value  received,  land  owners 
are  often  compelled  to  make  severe  sacrifices  to  meet  it,  and 
sometimes,  unable  to  do  so,  have  lost  their  property. 

Payment  of  Assessment  in  Installments. — There  are 
various  methods  of  preventing  the  hardship  just  indicated 
which  do  not  involve  limiting  the  assessment  to  less  than  the 
amount  of  the  betterment.  The  method  adopted  in  this  country 
to  accomplish  this  result  is  to  provide  that  if  the  assessment 
exceeds  some  moderate  percentage,  such  as  ten,  five,  or  even 
three  per  cent,  of  the  value  of  the  property,  it  may  be  paid  in 
installments;  and  in  order  that  the  city,  which  has  advanced 
the  money  necessary  to  pay  the  full  cost  of  the  improvement, 
may  not  suffer,  interest  is  payable  to  the  city  on  all  unpaid 
balances.  Such  statutes  are  now  common  in  the  United  States. 

Payment  of  Local  Benefits  in  Germany. — In  the  Ger- 
man states  the  abutter  is  liable  for  the  cost,  with  sewers,  light- 
ing system,  etc.,  and  in  Prussia  and  some  other  states  for  five 
years  maintenance,  of  half  that  portion  of  a  new  street  of  ordi- 
nary width  on  which  he  abuts;  or  of  the  equivalent  area  of  a 
wider  street;  but  is  obliged  to  pay  this  amount,  without  interest, 
only  when  he  builds  on  his  lands.  The  street  may  be  con- 
structed by  the  city  or  by  any  owner  of  land  on  the  street.  If 
the  land  owner  lays  the  street  out,  he,  as  the  "undertaker"  of 
the  enterprise,  can  recover  the  cost,  without  interest,  from  the 
other  land  owners  when  they  build,  just  as  the  city  has  the 


366          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

right  to  do  when  it  is  the  "undertaker."  This  system  enables 
the  land  owner  to  postpone  the  payment  for  the  benefit  to  his 
land  from  the  improvement  until  that  benefit  has  been  actually 
received;  whereas  our  system  sometimes  compels  him  to  pay 
for  expectations  which,  however  well  founded,  are  sometimes 
hard  to  convert  into  the  immediate  cash  needed  to  pay  the  as- 
sessment. 

In  practice  the  system  in  vogue  here  tends  to  hasten  the 
development  of  land,  while  the  German  system  tends  to  retard 
it.  The  German  authorities  hesitate  to  build  streets  far  in 
advance  of  the  immediate  and  certain  need  of  building  lots, 
since  this  might  throw  upon  them  not  only  the  maintenance 
charges  of  improvements  not  fully  utilized  but  also  the  inter- 
est on  the  cost  of  construction  for  many  years.  It  is  because  of 
this  unwillingness  of  the  authorities  to  construct  streets  that 
the  private  land  owner  often  does  so  at  his  own  risk ;  for  other- 
wise he  is  unable  for  some  time  to  utilize  or  market  his  land. 
The  risks  and  expenses  which  the  authorities  thus  escape  are 
not,  however,  an  economic  saving;  they  are  ultimately  paid  for 
by  the  public  in  increased  prices  for  building  land  and  higher 
rents.  The  speculator  incurs  these  expenses  only  in  the  hope, 
often  fulfilled,  of  adding  them,  with  a  handsome  profit,  to  the 
selling  price  of  his  building  lots. 

Land  development  is  also  retarded  in  Germany — as  in 
European  countries  generally — by  the  fact  that  the  owner  pays 
taxes  not  on  its  capital  value,  as  with  us,  but  only  on  its  income. 
Under  this  system  unused  land  can  be  carried  at  a  small  ex- 
pense, while  here  the  cost  is  heavy. 

One  of  the  usual  effects  of  the  German  legal  system  of 
street  construction  and  of  taxation  of  land  is  to  decrease  the 
amount  of  improved  building  land,  and  to  produce  a  city  solidly 
built  up  to  the  point  where  the  open  fields  begin.  The  German 
authorities  point  out  the  fact  that  this  method  of  city  building 
saves  the  expense  of  vast  stretches  of  little  used  streets,  sewi-rs, 
and  public  utility  systems,  as  well  as  the  policing  of  sparsely 
settled  districts,  necessary  under  our  system.  It  is  evident, 
however,  that  this  German  system  of  solid  city  building  tends 
to  limit  the  available  supply  of  "building  ripe"  land  to  a  nar- 


CITY  PLANNING  FINANCE  3^7 

row  belt  around  the  city.  In  so  far  as  this  lessens  the  extent  to 
which  vacant  land  is  held  speculatively  for  sale  as  building  lots, 
it  lessens  carrying  charges  and  the  price  of  building  land  to 
the  purchaser.  The  German  land  reformers  point  out,  how- 
ever, that  the  system  also  limits  the  supply  of  building  land  to 
that  contained  in  this  narrow  band  and  thus  raises  prices,  while 
under  our  system  all  the  land  suitable  for  building  within  a 
reasonable  distance  of  the  city  is  available  for  the  purpose.12 

In  Prussia  the  land  owner  has  no  right  under  any  circum- 
stances to  demand  that  the  city  build  streets;  but  in  some  of 
the  other  states  he  may  require  this  to  be  done  when  there  is  a 
public  necessity  for  the  street;  the  law  usually  providing  that 
when  the  solidly  built  city  or  its  advance  guard  of  structures 
has  approached  within  a  given  distance,  varying  in  the  different 
states,  from  the  land  in  question,  the  street  shall  be  constructed. 
The  legal  system  of  street  construction  and  the  practice  which 
has  grown  up  under  it,  with  their  manifold  effects  on  city 
construction,  must  be  studied  in  detail  in  order  to  understand 
city  planning  in  Germany ;  and  they  may  not  be  without  sugges- 
tions or  warning  from  which  we  may  profit.  It  is  all  an  integral 
part  of  the  great  problem  of  the  wise  control  of  the  distribution 
of  population  and  industry  with  relation  to  land  and  the  other 
natural  resources  of  the  state  and  nation,  the  solution  of  which 
is  essential  to  a  decision  in  this  and  so  many  other  of  its  num- 
erous phases. 

Area  of  Assessment. — Experience  has  shown  that  in  the 
construction  of  new  streets  of  usual  or  standard  width  the 
abutters  as  a  general  thing  are  benefited  by  the  increase  in  the 
market  value  of  their  land  at  least  to  the  extent  of  the  cost ;  and 
it  is  now  common  practice  in  this  country  and  not  unusual 
abroad  to  collect  the  entire  cost  of  such  streets  from  the  abut- 
ters. Where,  however,  a  street  of  greater  width  is  laid  out, 
the  abutter  is  not  often  specially  benefited  by  the  extra  width 
to  anything  like  the  extent  of  the  extra  cost  it  entails ;  but  in 
such  cases  there  is  a  district  on  each  side  of  the  street  beyond 
the  land  of  abutters,  perhaps  on  other  standard  streets,  which 
feels  the  good  effect  of  a  street  of  more  than  ordinary  impor- 
"  See  also  pp.  40,  455. 


368  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

tance.  Here  is  a  special  benefit  that  in  justice  to  the  city  as  a 
whole  should  be  specially  taxed,  and  in  the  United  States  and 
Canada  it  is  not  uncommon  nowadays  to  do  so,  an  area  of  as- 
sessment being  created  for  that  purpose.13  This  course  may  be 
followed  under  any  law  allowing  the  assessment  of  local  bene- 
fits which  does  not  limit  the  assessment  to  abutting  land.  In 
cities  where  it  is  customary  to  collect  local  benefits  from  all 
who  are  so  benefited,  whether  they  are  abutters  or  not,  it  is  only 
the  exceptional  street,  with  its  sewers  and  other  accessories,  any 
part  of  the  expense  of  which  is  paid  by  the  city  as  a  whole.14 

In  New  York  and  a  few  very  large  cities  a  special  benefit 
to  a  portion  of  the  entire  city  is  recognized  in  the  case  of  im- 
provements of  more  than  local,  but  not  of  city-wide,  effect.  In 
New  York,  for  instance,  the  assessment  in  such  cases,  so  far 
as  not  levied  on  abutters,  or  a  more  limited  area,  is  often  made 
on  the  borough  in  which  the  improvement  is  undertaken.15  In 

"The  reader  will  perceive  that  the  German  practice  is  governed  by 
a  "rule  of  thumb"  which  to  some  extent  produces  this  result. 

"  Such  an  apportionment  is  legal.  Page  and  Jones,  Taxation  by 
Assessment,  sec.  663  and  ff.  (1909). 

"The  provision  for  the  purpose,  sec,  247  of  the  charter,  is  as  follows: 

247.  Board  of  estimate  and  apportionment;  power  with  respect  to 
certain  public  improvements.  Before  a  public  improvement  of  any  kind 
(except  an  improvement  to  be  made  pursuant  to  the  rapid  transit  act) 
involving  the  acquisition  or  the  physical  improvement  of  property  for 
streets,  public  places,  parks,  bridges,  approaches  to  bridges,  for  the  dis- 
posal and  treatment  of  sewage  or  the  improvement  of  the  waterfront, 
or  involving  both  such  acquisition  and  physical  improvement  of  prop- 
erty, which  acquisition  or  physical  improvement,  or  both,  is  estimated  to 
cost  the  sum  of  fifty  thousand  dollars  or  more,  shall  be  authorized,  the 
board  of  estimate  and  apportionment  may  determine  in  what  manner  and 
in  what  shares  and  proportions  the  cost  and  expense  of  the  acquisition 
or  physical  improvement,  or  both,  shall  be  paid  by  the  city  of  New  York, 
by  one  or  more  boroughs  thereof,  by  a  part  or  portion  of  one  or  more 
boroughs  thereof,  or  by  the  respective  owners,  lessees,  parties  and  persons 
respectively  entitled  unto  or  interested  in  the  lands,  tenements,  heredita- 
ments and  premises  not  required  for  the  said  improvement,  which  said 
board  shall  deem  peculiarly  benefited  thereby. 

"If  said  board  shall  determine  that  the  cost  of  such  acquisition  or 
physical  improvement,  or  both,  shall  be  apportioned  between  or  among 
the  city  of  New  York,  one  or  more  boroughs  thereof,  a  part  or  p 
of  one  or  more  boroughs  thereof,  or  the  respective  owners,  lessees,  parties 
and  persons  respectively  entitled  unto  or  interested  in  the  lands,  tene- 
ments, hereditaments  and  premises  not  required  fur  the  said  improvement, 
which  said  board  shall  deem  peculiarly  benefited  thereby,  the  said  board 
may  also  determine  in  what  manner  and  in  what  proportion  the  cost  and 
expense  of  such  acquisition  or  physical  improvement,  or  both,  shall  be 


CITY  PLANNING  FINANCE  369 

some  smaller  cities  the  local  effect  of  all  improvements  is  recog- 
nized by  dividing  the  city  into  tax  districts  for  all,  or  certain, 
purposes. 

In  England  the  Planning  Act  of  1909  and  1919,  under 
which  special  areas  are  chosen  for  development,  provides  that 
the  local  authority  responsible  for  any  given  town  planning 
scheme  may  levy  local  benefit  assessments,  and,  moreover,  ap- 
propriate fifty  per  cent  of  any  and  all  increases  in  net  values 
of  real  estate  due  to  the  plan.  It  was  evidently  considered  wiser 
to  allow  private  owners  to  retain  half  of  these  gains,  so  as  to 
get  and  keep  their  interest  in  the  inauguration  and  execution  of 
the  plan. 

Assessments  for  Parks. — The  principle  of  assessment  of 
special  benefit  taxes  may  be  applied  not  only  to  streets  but  to 
parks.  In  this  way,  it  has  been  found,  the  whole  cost  of  small 
parks  and  playgrounds,  and  some  part  in  every  case  of  the  cost 
of  large  parks,  may  be  paid.  This  method  of  obtaining  parks 
prevails  and  receives  popular  support  in  New  York  and  many 
other  cities.  A  most  remarkable  example  of  this  policy  is  fur- 
nished by  Kansas  City.  The  city  is  divided  into  six  park  dis- 
tricts. Practically  the  entire  expense  of  parks  within  the  city 
is  paid  by  these  districts,  the  expense  being  assessed  upon  abut- 
ters  and  others  specially  benefited  in  proportion  to  their  bene- 
fits. Thus,  virtually  without  cost  to  the  city  as  a  whole,  an 
entire  park  system,  extensive  and  beautiful,  has  been  built  up; 
and,  more  wonderful  still,  land  owners  compete  with  one  an- 
other to  secure  parks  for  which  they  themselves  must  pay.16 

borne  either  by  the  city  of  New  York,  by  one  or  more  boroughs  thereof, 
by  a  part  or  portion  of  one  or  more  boroughs  thereof,  or  by  the  respective 
owners,  lessees,  parties  and  persons  respectively  entitled  unto  or  inter- 
ested in  the  lands,  tenements,  hereditaments  and  premises  not  required  for 
the  said  improvement,  which  said  board  shall  deem  peculiarly  benefited 
thereby.  .  .  ." 

18  These  facts  are  obtained  from  the  report  of  the  Board  of  Park 
Commissioners  for  Kansas  City  for  1910.  With  regard  to  them  the  re- 
port says  (p.  6)  : 

"The  figures  given  in  the  accompanying  report  are  not  estimates  or 
guess  work,  but  actual  facts,  which  would  be  competent  evidence  before 
any  court  of  record  that  the  enhancement  of  values  in  real  estate  directly 
attributable  to  the  influence  of  the  park  and  boulevard  system  is  far  in 
excess  of  the  entire  cost  of  that  system  to  the  property  owner  who 
has  paid  for  it,  and  that  it  has  been  for  him  a  highly  profitable  invest- 


370  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  results  of  the  establishment  and  extension  of  the  parks 
in  Essex  County,  New  Jersey,  are  perhaps  even  more  striking. 
The  commissioners  claim,  and  cite  the  facts  and  figures  of  a 
careful  investigation  to  prove,  that  the  park  land  has  increased 
in  value  over  five  hundred  per  cent,  adjoining  land  over  six  hun- 
dred per  cent  and  other  land  within  the  park  influence,  over 
two  hundred  per  cent,  in  twelve  years.17 

ment.  The  complete  understanding  and  appreciation  of  this  fact  is  demon- 
strated by  the  constant  pressure  brought  upon  the  Board  of  Park  Com- 
missioners by  weekly  delegations  of  property  owners  arguing  for  the 
extension  of  park  and  boulevard  improvements  into  hitherto  undeveloped 
and  unimproved  sections  of  the  city,  and  into  the  new  territory  acquired 
by  the  extension  of  the  city  limits,  in  order  that  the  advantages  of  the 
extension  of  its  system  and  the  enhancement  and  permanency  of  real  estate 
values  which  it  invariably  gives  to  the  neighboring  property  may  be  en- 
joyed! in  equal  proportion  by  the  residents  of  every  section  of  the  city." 

For  facts  and  figures  in  more  detail,  see  pp.  12,  13  of  this  report. 

17  The  facts  just  stated  are  a  brief  summary  of  the  following  state- 
ment, contained  in  a  letter,  written  to  the  author  by  the  secretary  of  the 
Essex  County  Park  Commission :  "The  Essex  County  Park  Commission 
has  recently  made  an  investigation  as  to  the  relative  increase  in  property 
valuation  in  the  neighborhood  of  the  four  county  parks  in  the  city,  and 
that  of  other  property  in  the  same  taxing  district  just  outside  of  what 
may  be  called  the  'park  influence.'  The  object  was  to  ascertain  how  much 
the  development  of  a  park  adds  to  the  value  of  the  adjoining  property 
beyond  that  of  other  neighborhoods  not  affected  by  park  improvement. 
The  investigation  was  made  by  Tax  Commissioner  John  Howe,  whose 
fitness  for  the  work  is  acknowledged.  A  report  was  made  upon  each  park 
as  the  figures  were  ascertained,  and  the  statistics,  except,  those  relating  to 
Branch  Brook  Park,  have  been  published  in  the  Sunday  Call.  These 
four  parks  are  Eastside,  Westside,  Weequahic  and  Branch  Brook. 

"The  reports  show  that  the  parks  themselves  have  increased  in  value 
from  $1,000,000  to  more  than  $5,000,000,  but  this  increase  of  $4,000,000 
is  not  emphasized,  as  it  is  not  available  for  taxing  purposes.  The  prop- 
erty immediately  adjoining  the  four  parks  named  was  assessed  in  1905 
for  $4,143,850,  and  in  1916  for  $29,266,000,  an  increase  of  $.15.1.22,150,  or 
606.3  Per  cent-  At  the  same  time  property  in  the  same  taxing  district 
and  perhaps  not  wholly  outside  of  what  may  be  called  the  'park  influence" 
was  assessed  in  1005  at  $36,606,007,  and  in  1916  at  $111.531,725,  a  gain  of 
$74.o.'4.XiS,  or  204.6  per  cent.  In  plainer  words,  while  the  property  ail- 
joining  the  parks  had  increased  more  than  six  times  in  value,  property 
in  the  remainder  of  the  same  taxing  districts  has  about  doul>l«l  in  value. 

"If  the  increase  in  valuations  adjoining  these  parks  had  been  the  same 
as  in  other  property  in  the  same  taxing  districts,  and  no  more,  it  would 
have  been  $8,453,454,  leaving  an  increase  as  a  result  of  the  parks  of  $16,- 
668,700.  The  fortunate  owners  of  this  property  have  been  enriched  by 
this  large  sum  beyond  what  they  would  have  been  had  the  parks  not 
been  established. 

"But   this   is  not   all.     The  cost  of   these   four  parks  was  $.1.24 
The  increase  is  enough  to  pay  for  them  four  times.     The  cost  of  all  the 
park-    in   the  county  was  $6,929,625.47 — say  $7,000,000.     The   increa 
property   adjoining   these    four   parks   alone,   beyond    what    it    would   have 
been  if   the  parks  had  not  been  constructed,  is  sufficient  to  pay  for  all 


CITY  PLANNING  FINANCE  371 

Additional  facts  and  figures  of  this  sort  might  be  given 
indefinitely,  but  there  can  be  no  proof  to  a  mathematical  cer- 
tainty that  new  parks  increase  land  values  in  their  neighbor- 
hood, since  other  factors  in  these  increases  cannot  be  incontro- 
vertibly  eliminated  or  exactly  allowed  for.  Manifestly,  how- 
ever, the  judgment  of  common  observation  and  common  sense 
strengthens  the  conclusion  that  new  parks,  if  wisely  planned 
and  located,  are  sufficient  to  add  greatly  to  land  value;  and 
fortunately  our  courts  do  not  demand  any  better  evidence. 

Assessments  for  Public  Improvements  Generally. — 
There  is  no  reason  why  the  practice  of  levying  local  assessments 
for  local  benefits  should  be  confined  to  streets  and  parks.  On 
the  contrary,  as  has  been  well  said,18 

"One  principle  should  be  invariably  recognized,  namely,  where 
there  is  local  benefit  there  should  be  local  assessment.  There  can 
be  no  improvement  which  has  been  intelligently  planned  and  executed 
which  will  not  result  in  some  local  benefit,  and  it  follows  that  there 
always  should  be  some  local  assessment.  No  improvement,  however 
small  or  however  large,  will  be  of  equal  benefit  to  the  entire  city, 
and  to  distribute  the  burden  of  paying  for  it  over  the  whole  city 
according  to  taxable  values  is  unfair  in  that  it  is  not  placed  accord- 
ing to  benefit."19 

the  parks  in  the  county  2.4  times,  and  the  increase  from  the  other  parks 
in  the  county,  while  not  so  great  in  proportion,  is  undoubtedly  much  more 
than  their  cost.  The  increased  revenue  to  the  county  is  already  suffi- 
cient to  pay  the  interest  and  sinking  fund  charges  on  the  bonds  issued  for 
park  construction. 

"So  the  county  is  the  possessor  of  what  is  said  to  be  the  finest  system 
of  parks  in  the  country,  and  they  have  paid  for  themselves  and  will 
remain  an  asset  that  will  not  only  yield  a  dividend  in  taxes  to  the  county, 
but  one  in  health  and  pleasure  -to  the  people  that  is  beyond  price." 

"Nelson  P.  Lewis,  Chief  Engineer  of  Board  of  Estimate  and  Appor- 
tionment, New  York  City,  in  Proceedings  of  Fourth  National  Conference 
on  City  Planning,  p.  45. 

"An  assessment  may  be  levied  for  the  benefit  derived  from  several 
correlated  improvements,  and  for  the  benefit  obtained  by  the  several 
elements  of  a  scheme  or  plan  of  development  or  improvement.  Thus  an 
assessment  on  the  property  benefited  may  be  made  for  a  new  or  im- 
proved highway  with  sewers  and  building  lines  (Laws,  New  York,  1869, 
ch.  861 ;  Lincoln  v.  St.  Com'rs.,  176  Mass.  210  (1900),  or  for  the  improve- 
ment of  a  district  by  the  widening  of  certain  highways,  the  narrowing 
of  others,  the  establishment  of  building  lines  on  some  of  them  and  the 
exclusion  of  certain  trades  and  industries  in  others  (Laws,  New  York 
1868,  ch.  631)  or  for  the  construction  of  a  train  station,  and  the  construc- 
tion and  change  of  streets  so  as  to  give  access  to  it.  (Sears  v.  St.  Com'rs., 
180  Mass.  274  (1902);  Wells  v.  St.  Com'rs.,  187  Mass.  451  (1905)-  See 
also,  American  Assoc.  v.  Commonwealth,  193  Mass.  470  (1907). 


372  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Assessments  for  Transit  Lines. — An  application  of  this 
principle,  most  useful,  most  just,  and  yet  quite  outside  ordinary 
present  practice  in  the  United  States,20  is  the  assessment  on 
those  locally  benefited  of  the  cost  of  the  construction  of  local 
transit  lines.  In  this  connection  the  article  just  quoted  states  :  '21 

"The  City  Club  of  New  York  several  years  ago  showed  that  as 
a  result  of  the  building  of  the  first  Rapid  Transit  Subway  in  New 
York  the  actual  land  values  in  those  portions  of  upper  Manhattan 
and  the  Bronx  which  were  most  directly  affected  were  within  seven 
years  increased  $80,500,000  above  the  normal  increase  for  that  period. 
The  cost  of  that  part  of  the  subway  passing  through  the  districts 
where  this  rise  in  values  took  place  was  about  $13,000,000,  while  the 
cost  of  the  entire  subway  from  the  Battery  north  was  $43,000,000. 
It  is  quite  evident  that  if  the  $13,000,000  which  was  spent  upon  that 
part  of  the  subway  traversing  the  district  so  notably  benefited  had 
been  assessed  directly  upon  the  property,  its  owners  would  still  have 
netted  a  neat  profit  of  some  $67,500,000,  while  had  the  cost  of  the  en- 
tire subway  been  assessed  upon  the  same  limited  district,  the  net 
profit  to  the  land  owners  would  have  been  $37,500,000.  Was  it  quite 
fair  that  property  in  distant  parts  of  the  city,  entirely  unaffected 
by  this  great  project,  should  bear  the  same  proportion  of  the  burden 
as  that  which  was  so  conspicuously  advantaged  ?"  * 

10  In  Canada,  very  generally,  the  cost  of  constructing  or  extending  pub- 
lic utilities  or  of  acquiring  them  if  already  constructed,  may  be  defrayed 
by  the  levy  of  local  assessments  upon  those  benefited  in  proportion  to  their 
benefits.  Saskatchewan,  Stats.,  1916,  ch.  19,  part  XII;  Revised  Statutes, 
Ontario,  1914,  Local  Improvements,  ch.  193;  Revised  Statutes,  Manitoba, 
1913,  ch.  133,  sec.  483- 

*  Proceedings  of  the  Fourth  National  Conference  on  City  Planning,  p. 
43  at  46. 

"The  report  of  the  City  Club,  here  referred  to,  is  also  mentioned 
with  approval  by  the  Federal  Electric  Railways  Commission  in  its  report 
to  the  President,  published  by  the  Government  Printing  Office,  August, 
1920.  See  also  an  article  entitled  "Low  Street  Railway  Fares  With  the 
Help  of  the  Land  Owner,"  by  Louis  B.  Wehle,  in  the  National  Municipal 
Review  for  October,  1921. 

The  following  legal  provisions  for  the  construction  of  a  rapid  transit 
road  in  the  manner  described  in  the  City  Club's  report  arc  on  the  statute 
books  of  New  York  State,  but  have  never  been  made  use  of : — 

New  York  Laws  1909,  amending  (by  sec.  17)  laws  1891,  ch.  4,  as 
heretofore  amended  by  adding  thereto  sec,  37.  pars.  3-9;  here  Riven  as 
amended  by  Laws  1915,  ch.  545,  applying  to  cities  of  over  a  million  in- 
habitants— i.e.,  New  York  City. 

R»P»<1  3.  ...  A   rapid  transit   railroad,  owned   or  to   be  owned  by  the  city, 

raii'road  ar|d  ^or  tne  construction  of  which  with  public  money  in  whole  or  in  part 
owned  by  a  contract  or  contracts  have  been  or  are  authorized  by  this  act  t->  he 
city  to  be  entered  into  as  aforesaid,  shall  be  a  l"i-:il  improvement,  the  cost  of  which 
Itrore-lin  railroad  may  be  met  in  whole  or  in  part  by  assessment  on  the  property 
ment.  benefited.  The  public  service  commission  with  the  approval  of  the  board 


373 


Increment  Taxation. — It  has  often  been  urged  of  .late 
that  there  should  be  a  special  tax  on  increments  in  land  value, 

of  estimate  and  apportionment  .  .  .  shall  have  power  to  determine  whether 
all  or  any,  and  if  any,  what  portion  of  the  cost  and  expense  necessary 
to  be  incurred  for  any  such  road  shall  be  assessed  upon  property  benefited 
thereby,  and  whether  all  or  any,  and  if  any,  what  portion  of  the  cost  and 
expense  necessary  to  be  incurred,  or  which  shall  have  been  already  neces- 
sarily incurred,  for  the  acquisition  of  any  property  for  the  construction 
or  operation  of  said  railroad  shall  be  assessed  upon  property  benefited 
by  said  railroad.  An  assessment  or  assessments  upon  the  property  so 
benefited  may  be  laid,  confirmed,  enforced  and  collected  in  accordance 
with  such  determination  and  pursuant  to  the  provisions  of  the  charter 
and  laws  respecting  assessments  for  local  improvements  in  such  city. 

*  4-6.     Procedure,  etc.,   in  levying  such  assessments. 

7.  In  order  to  provide  funds  in  advance  of  the  collection  of  such 
assessments,  the  comptroller  or  other  chief  financial  officer  of  such  city 
shall  in  addition  to  power  to  issue  assessment  bonds  under  the  provisions 
of  any  law  or  charter  of  such  city  have  also  additional  authority  in  lieu 
of  issuing  any  such  assessment  bonds  under  said  law  or  charter  to  issue 
and  sell  at  not  less  than  par  on  or  after  the  date  when  any  such  assess- 
ment shall  be  confirmed  and  entered  bonds  which  shall  be  known  as  rapid 
transit  construction  bonds  for  the  railroad  designated  as  aforesaid  and 
which  shall  not  exceed  in  the  aggregate  the  amount  of  the  assessment  so 
levied  as  aforesaid.  Except  that  the  city  may  guarantee  in  such  bonds 
the  validity  of  the  assessment  and  the  regularity  of  the  proceedings  to 
levy  it,  such  rapid  transit  construction  bonds  shall  not  be  issued  or  sold 
upon  the  faith  or  credit  of  the  city  and  the  faith  or  credit  of  the  city  shall 
not  be  pledged  nor  shall  the  city  or  any  of  the  city's  property  be  liable 
for  the  payment  thereof,  but  such  bonds  shall  be  payable  only  out  of  the 
rapid  transit  construction  fund  as  hereinafter  directed  to  be  constituted. 
Such  bonds  shall  be  in  such  form,  denomination  or  denominations,  and 
for  such  term,  not  exceeding  fifteen  years,  as  the  said  comptroller  or 
other  financial  officer  shall  designate,  and  shall  bear  the  same  rate  of 
interest  as  the  assessment  installments  shall  bear.  .  .  . 

'In  selling  such  rapid  transit  construction  bonds  the  comptroller  may 
by  the  terms  of  sale  or  otherwise  prescribe  that  payment  to  him  therefor 
shall  be  made  by  the  purchaser  in  such  installments  as  the  need  of  con- 
struction as  certified  to  him  by  the  public  service  commission  shall  require, 
and  may  provide  for  the  forfeiture  of  the  right  to  bonds  allotted  and 
of  payments  made  thereon.  All  moneys  derived  from  the  sale  of  such 
bonds,  and  all  moneys  derived  from  the  collection  of  such  assessments 
shall  be  kept  separate  and  apart  from  all  other  funds  of  the  said  city 
and  shall  be  known  as  the  rapid  transit  construction  fund  of  such  rail- 
road. .  .  .  They  shall  be  applied  only  to  the  following  uses  and  among 
such  uses,  only  in  the  following  order  as  nearly  as  may  be:  (i)  To  cost 
and  expenses  of  the  construction  of  such  railroad  and  the  acquisition  of 
property  necessary  for  such  construction,  including  equipment  other  than 
rolling  stock;  (2)  to  the  acquisition  of  real  property  necessary  for  the 
operation  thereof ;  (3)  to  the  retirement  of  the  rapid  transit  construction 
bonds  therefore.  .  .  ." 

*  8.     Proceedings  in  cases  of  default  on  bonds,  reductions  in  assess- 
ments ;  excess  of  cost  of  road  over  assessments,  etc. 

*9-io.     Partial   assessment  of   costs;   procedure   when   funds   derived 
from  assessment  are  insufficient, 
*  Summarized, 


Assess- 
ments; de- 
termination 
of  property 
benefited, 
collection. 


Issue  and 
sale  of 
rapid 
transit 
construc- 
tion bonds. 


City's 
faith  and 
credit  not 
pledged. 

Bonds; 
form,    in- 
terest,   ex- 
emption 
from' 
taxation, 
etc. 


Terms 
of  sale. 


Rapid 
transit 
construc- 
tion fund. 


Uses  of 

assess- 
ments. 


374          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

heavy  enough  to  appropriate  for  general  use  the  major  part  at 
least  of  gains  due  to  that  cause.  It  is  asserted  that  the  rise  in 
land  values  is,  in  the  main,  the  result  of  the  general  improve- 
ment of  the  community,  and  its  increase  in  numbers,  and,  in  so 
far  as  expedient,  may  with  justice  be  appropriated  for  general 
use  by  special  taxation.  It  is  impossible  within  the  limits  of 
this  work  to  discuss  the  merits  of  such  taxation ;  but  some  of 
its  applications  may  with  profit  be  considered.28 

Germany  has  now  for  many  years  made  use  of  increment 
taxation.  As  administered  in  that  country  there  are  certain 
practical  objections  to  it.  Germany  makes  the  entire  levy  at  the 
time  of  the  sale  of  the  real  estate,  appropriating  at  that  time  a 
substantial  portion  of  the  increment  in  value  since  the  last 
sale.  This  system  yields  an  uncertain  income  and  often  absorbs 
such  a  large  percentage  of  the  selling  price  as  to  cause  hardship 
and  prevent  the  free  sale  of  land.  Land  is  usually  mortgaged, 
and  often  improved  land  is  subject  to  more  than  one  mortgage, 
so  that  the  total  indebtedness  on  it  equals  a  large  percentage  of 
its  value.  If,  as  is  said  often  to  be  the  case  in  Germany,  the 
increment  tax  takes  all  or  more  than  all  the  equity  in  the  prop- 
erty, sales  are  made  exceedingly  difficult. 

The  objections  just  stated  are  not  inherent  in  increment 
taxation ;  indeed  a  bill  free  from  them  was  introduced  into  the 
New  York  legislature.24  It  took  the  assessed  value  of  land, 

"  The  increment  may  in  some  cases  be  obtained  for  the  city  by  excess 
condemnation,  if  legal  (See  p.  59  above)  ;  and  in  Germany  these  returns 
are  sometimes  secured  to  the  municipality  by  the  purchase  of  land  at 
private  sale,  but  cannot  be  condemned  for  that  purpose. 

"Assembly  Intro.  No.  mo,  1915.  The  bill  reads  (in  part)  as  follows: 
"For  the  purpose  of  imposing  a  tax  upon  the  unearned  increment,  in 
addition  to  the  general  tax  upon  real  estate,  the  department  of  taxes  and 
assessments  of  the  city  of  New  York  shall  cause  to  be  included  in  the 
books  for  the  annual  record  of  the  assessed  valuation  of  real  e-tatc.  kept 
as  provided  in  section  eight  hundred  and  ninety-two  of  this  act,  two  addi- 
tional columns,  in  the  first  of  which  there  shall  be  set  <l<>\vn  in  each  year 
the  basic  value,  as  hereinafter  defined,  of  each  separately  assessed  parcel 
of  real  estate  except  special  franchises,  and  in  the  second  there  shall  be 
set  down  the  amount,  if  any,  by  which  the  assessed  value  of  such  parcel 
for  the  current  year,  assessed  as  if  wholly  unimproved,  exceeds  such  basic 
value,  which  excess  shall,  for  the  purpose  of  this  tax,  be  deemed  tlie  un- 
earned increment.  The  basic  value  of  any  parcel  of  real  estate  shall  al- 
ways be  the  assessed  valuation  of  such  parcel,  ass<"--< •<!  a*,  if  wholly 
unimproved,  as  the  same  appeared  on  the  annual  record  of  . alua- 

tions  of  real  estate  on  the  first  day  of  March,  nineteen  hundred  and  four- 


CITY  PLANNING  FINANCE  375 

without  buildings,  at  the  time  of  the  passage  of  the  act  as  the 
basic  value,  and  provided  for  the  levy  of  a  small  surtax  each 
year  on  any  excess  in  value  which  had  accrued.  Thus,  under 
this  proposed  law,  if  a  tract  of  land  was  assessed  at  $10,000 
the  basic  year,  and  at  $11,000  the  next  year,  the  regular  tax 
would  be  levied  that  year  on  $i  1,000,  and  the  surtax  on  $1,000 ; 
but  if,  a  year  later,  the  assessed  value  had  fallen  to  $10,000  or 
less,  there  would  be  no  levy  of  a  surtax.  An  increment  tax  of 
this  sort  would  furnish  a  comparatively  steady  income  and 
would  not  be  exceptionally  burdensome.25 

teen;  provided,  however,  that  such  basic  value  shall  be  increased  from 
time  to  time  by  adding  to  the  valuation  as  of  the  first  day  of  March, 
nineteen  hundred  and  fourteen,  the  amount  of  any  and  all  assessments 
for  public  or  local  improvements  becoming  due  after  said  date,  and 
the  reasonable  cost  (when  incurred)  of  bringing  the  land  to  the 
established  street  level,  of  making  connections  for  water,  light  and 
sewage  and  street  openings  when  made  at  the  expense  of  the  owner  of 
the  parcel.  In  case  any  separately  assessed  parcel  of  real  estate  is  divided 
after  March  one,  nineteen  hundred  and  fourteen,  the  board  of  taxes  and 
assessments  shall  apportion  the  basic  value  thereof  in  the  same  manner 
and  in  the  same  ratio  as  the  assessed  value  thereof  as  wholly  unimproved 
land  shall  or  may  be  apportioned  under  the  provisions  of  section  eight 
hundred  and  ninety-two-a  of  this  act ;  and  in  case  separate  parcels  shall 
be  combined  into  a  separately  assessed  parcel,  appropriate  combinations 
of  the  resulting  basic  values  and  unearned  increments  shall  likewise  be 
entered.  The  said  unearned  increment  shall  be  taxed  at  the  rate  of  one 
per  centum  per  annum,  and  such  tax  shall  be  levied  and  collected  and  be 
a  lien  upon  the  real  estate  in  the  same  manner  as  other  taxes  on  real 
estate.  Applications  for  additions  to  basic  values  shall  be  made  to  and 
determined  by  the  department  of  taxes  and  assessments  at  the  same  time 
and  in  the  same  manner  as  applications  for  reductions  of  the  assessments 
of  real  estate,  and  the  determination  of  said  department  thereon  shall  be 
similarly  reviewable  by  certiorari." 

28  The  law  on  this  subject  is  more  fully  stated  by  Goodnow  in  Social 
Reform  and  the  Constitution  (the  Macmillan  Co.,  New  York,  1911),  p.  274 
and  ff.,  as  follows : 

"IV.  Regulation  by  Taxation.  It  has  been  said  the  modern  program 
of  social  reform  makes  use  of  the  power  of  taxation  for  social  rather 
than  fiscal  purposes.  Thus  progressive  rates  of  taxation  are  imposed 
with  the  idea  of  discouraging  the  accumulation  of  large  fortunes ;  or 
taxes  are  imposed  on  land  alone ;  while  improvements  on  the  land  are 
exempted ;  or  taxes  are  imposed  on  the  increment  of  land  values,  not 
so  much  in  the  belief  that  larger  amounts  of  money  will  be  realized  there- 
by, but  in  order  that  encouragement  may  be  given  to  building,  while  the 
holding  of  land  for  rise  in  value  may  be  discouraged,  and  in  order  that 
the  congested  population  conditions  incident  to  urban  life  may  be  remedied. 

"Are  these  purposes  of  taxation  improper,  and  are  these  various  kinds 
of  taxation  unconstitutional,  as  depriving  the  taxpayer  of  his  property 
without  due  process  of  law,  or  as  denying  him  the  equal  protection  of 
the  laws?  In  order  to  answer  these  questions,  we  must  have  recourse 
to  the  fundamental  principles  of  taxation,  some  of  which  are  regarded 


376  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Single  Tax. — Certain  students,  not  satisfied  with  taking 
what  is  ordinarily  regarded  as  increment,  advocate  the  ap- 
propriation, in  the  form  of  taxes,  of  the  entire  income  value  of 

as  so  axiomatic  that  we  have  no  provisions  in  the  constitutions  regarding 
them  and  no,  or  almost  no,  decisions  exactly  in  point. 

"One  of  these  fundamental  principles  is  that  the  courts  have  no  con- 
trol over  the  motives  which  may  lead  legislatures  to  impose  taxes,  pro- 
vided the  purpose  for  which  the  money  raised  and  spent  is  a  public  one. 
Thus  the  legislature  may  impose  a  protective  tariff  if  it  sees  fit,  with 
the  purpose  of  encouraging  home  manufacturers,  or  it  may  impose  a  tax 
with  the  idea  of  destroying  the  occupation  subjected  to  the  tax.  The 
first  enunciation  of  the  principle  that  the  power  to  tax  is  the  power  to 
destroy  was  made  by  Marshall  in  the  celebrated  case  of  McCulloch  v. 
Maryland  (4  Wheaton  316),  where  it  was  made  one  of  the  rationes  de- 
cidendi,  and  may  therefore  be  regarded  as  one  of  the  things  actually 
decided.  Later  the  principle  was  even  more  clearly  formulated  and 
enunciated  in  Veazie  Bank  v.  Fenno  (8  Wall  533),  where  the  power  to 
tax  was  exercised  for  the  purpose  of  destroying  the  note  circulation  of 
state  banks.  So,  we  may  say,  the  legislative  authority  may  resort  to  the 
power  of  taxation  for  any  motive  which  seems  to  it  to  be  proper,  pro- 
vided its  action  violates  no  other  constitutional  principle,  as,  e.g.,  that 
the  purpose  for  which  money  raised  by  taxation  must  be  public. 

"In  the  second  place,  in  the  absence  of  specific  constitutional  restric- 
tion, the  legislative  authority  may  select  for  taxation  such  objects,  classes 
of  individuals,  processes,  operations,  and  occupations  as  it  sees  fit.  and, 
as  a  corollary,  may  exempt  such  as  it  sees  fit.  The  only  universal  con- 
stitutional principle  which  may  be  said  to  limit  the  powers  of  the  legisla- 
ture in  this  respect  is  that  which  provides  for  uniformity  of  taxation,  or 
equal  protection  of  the  laws.  This  principle  has  been  held,  however,  not 
in  and  of  itself  to  limit  seriously  the  power  of  the  legislature.  Thus, 
the  Supreme  Court  has  held  that  the  legislative  authority  may  provide  for 
reasonable  classification  of  taxable  subjects,  i.e.,  may  tax  railways,  while 
exempting  other  corporations  (Kentucky  R.  R.  Tax  cases,  115  U.  S.  321)  ; 
may  tax  corporations,  while  exempting  other  individuals  (Home  Ins.  Co 
v.  New  York,  134  U.  S.  194)  ;  may  tax  the  transfer  of  property  by  will. 
while  exempting  other  transfers  of  property  (Orr  v.  Oilman,  183  U.  S. 
278;  Knowlton  v.  Moore,  178  U.  S.  41)  ;  may  tax  sales  at  exchanges  while 
exempting  other  sales  (Nicol  v.  Ames,  173  U.  S.  509)  ;  and  so  on  ad 
infinitum. 

"The  Supreme  Court  has  furthermore  held  that  classification  is  proper 
where  it  is  based  on  a  variation  of  rate  rather  than  on  a  variation  in  the 
subjects  taxed,  and  that  therefore  progressive  taxation  is  proper,  i.e..  that 
the  rat*  may  vary  inversely  or  directly  in  accordance  with  some  reasonable 
standard.  The  most  notable  example  is  found  in  the  taxation  of  in- 
heritances where  the  rate  may  vary  inversely  with  the  degree  of  relation- 
ship of  the  legatee  to  the  deceased,  or  directly  with  the  amount  of  the 
legacy  (Magoun  v.  Illinois,  etc.,  Bank,  170  U.  S.  283;  Knowlton  v.  V. 
178  U.  S.  41).  •  •  • 

"Furthermore,  under  the  specific  limitations  of  certain  state  mnstitu 
tions,  it  is  unquestionably  the  case  that  less  freedom  is  accorded  the  legis- 
lature.    Thus,  where  the  constitution  specifically  provides   for  uniformity 
of  taxation,  all  property  except  certain  minor  exemptions  must  be  taxed, 
and  progressive  rates  of  taxation  are  sometimes  regarded  as  improper. 

"In  the  third  place,  the  rate  of  taxation  adopted  is,  in  the  absence  of 
specific  constitutional  provisions,  absolutely  in  the  discretion  of  the  legis- 


CITY  PLANNING  FINANCE  377 

land.  They  would  levy  all  taxes  on  this  value,  and  increase 
these  taxes  until  the  entire  income  was  absorbed.  This  is  the 
so-called  single  tax.  A  measure  less  radical  than  this  is  the 

lature.  It  is  partly,  at  any  rate,  because  of  the  existence  of  this  principle 
that  the  power  to  tax  is  the  power  to  destroy. 

"These  being  the  fundamental  principles  with  regard  to  taxation,  what 
is  the  answer  we  are  to  give  to  the  question  as  to  the  constitutionality 
of  the  more  important  taxes  which  modern  social  reformers  demand 
should  be  imposed?  These  taxes  are  income  taxes,  taxes  on  the  unim- 
proved value  of  land,  taxes  on  the  increment  of  land  value,  and,  finally, 
taxes  having  progressive  rates.  .  .  . 

"Second,  taxes  on  the  unimproved  "value  of  land. — There  would  seem 
to  be  no  objection  based  upon  the  federal  constitution  to  these  taxes, 
provided  that  when  imposed  by  the  federal  government  they  are  appor- 
tioned among  the  states  according  to  population.  Inasmuch  as  the  value 
of  land  is  in  large  measure  dependent  on  population,  and  varies  almost 
directly  with  the  population,  a  federal  apportioned  tax  on  the  unimproved 
value  of  land  would  not  work  serious  injustice. 

"State  taxes  of  this  character  might,  however,  be  regarded  as  improper 
under  the  provisions  of  certain  state  constitutions,  but  in  other  states 
would  be  upheld  as  a  result  of  the  application  of  the  principle  according 
to  the  legislature  absolute  discretion  in  the  selection  of  the  things  to  be 
taxed  (see  e.g.,  People  v.  Ronner,  185  N.  Y.  285,  where  an  act  of  the 
legislature  of  the  state  of  New  York  was  upheld  as  constitutional  which 
selected  mortgages  for  taxation  at  a  special  rate). 

"The  same  reasons  which  would  render  constitutional  taxes  on  the 
unimproved  value  of  land,  would  also  justify  the  imposition  of  different 
tax  rates  on  the  land  value  and  on  the  value  of  the  improvements  on  the 
land.  That  is,  there  is  no  constitutional  objection  to  either  of  these  taxes 
based  on  the  federal  constitution,  and  none  from  the  point  of  view  of 
the  state  constitution  in  those  states  like  New  York  which  do  not  require 
strict  uniformity  in  taxation. 

"Third,  taxes  on  the  increment  of  land  value. — What  has  been  said 
with  regard  to  the  power  of  the  federal  government  to  impose  taxes  on 
the  unimproved  value  of  land  may  be  repeated  with  regard  to  taxes  on 
the  increment  of  land  value.  Both  taxes  would  be  on  land,  both  would 
therefore  be  direct,  and  both  would  have  to  be  apportioned.  It  is  possible 
that  profits  derived  from  the  sale  of  land  might  be  taxed  as  corporate 
profits  under  a  federal  corporation  tax,  without  apportionment. 

"When,  however,  we  come  to  a  consideration  of  the  power  of  the 
states,  the  conditions  are  somewhat  different.  At  a  very  early  time  in 
our  history  resort  was  had  to  a  method  of  taxation  which  has  since  come 
to  be  known  as  assessment  for  local  benefit.  It  was  justified  from  the 
point  of  view  of  expediency  on  the  theory  that  property  specially  bene- 
fited by  some  local  improvement  should  be  specially  taxed  for  that  im- 
provement. It  was  justified  from  the  point  of  view  of  its  constitutionality 
on  the  theory  that  the  legislature  had  almost  unlimited  discretion  in  the 
distribution  of  the  burden  of  taxation,  and  could  therefore  determine  that 
particular  property  should  be  selected  for  taxation  for  particular  pur- 
poses. This,  e.  g.,  is  the  view  of  the  Court  of  Appeals  of  the  state  of 
New  York,  in  which  this  method  originated  (People  v.  Mayor,  4  N.  Y. 
419).  It  is  also  the  view  which  was  subsequently  taken  by  the  Supreme 
Court  of  the  United  States  (French  v.  Barber  Asphalt  Paving  Co.,  181 
U.  S.  324).  It  is  not,  however,  the  view  approved  by  the  courts  of  most 
of  the  states,  which  have  claimed  the  right  to  review  the  determination 


37*  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

"untaxing  of  buildings,"  as  it  has  sometimes  been  designated. 
This  policy  calls  for  the  taking  of  all  taxes  off  improvements 
on  land,  and  its  imposition  on  the  land  value  alone.  This 
measure  is  advocated  by  some  as  a  first  step  toward  single  tax, 
and  by  others  as  a  method  of  checking  speculation  in  land  and 
stimulating  the  building  of  houses  on  vacant  land,  thus  lower- 
ing rents  and  lessening  congestion;  while  its  opponents  claim 
not  only  that  it  is  bad  finance  but  that  the  tax  on  land  is  not 
shifted  and  does  not  raise  rents,  and  that  the  more  intensive 
use  of  city  land,  if  it  resulted  from  such  a  measure,  would  mean 
an  increase  of  land  overcrowding  and  congestion.  Several 

of  the  legislature  that  particular  property  was  benefited  by  particular 
improvements. 

"In  states,  therefore,  where  a  strict  uniformity  in  property  taxation 
is  required,  an  increment  of  land  value  tax  which  did  not  provide  for 
the  expenditure  of  the  proceeds  of  the  tax  in  such  a  way  as,  in  the  opinion 
of  the  court,  to  benefit  the  land  whose  increment  of  value  was  taxed, 
might  conceivably  be  regarded  as  either  violating  the  principle  of  uni- 
formity, if  considered  as  a  tax  pure  and  simple,  or  as  not  benefiting  the 
property,  if  considered  as  an  assessment  for  local  benefit. 

"But  from  the  point  of  view  of  the  federal  constitution,  there  would 
apparently  be  no  objection  to  such  a  tax.  In  states  having  a  liberal  con- 
stitution, like  that  of  New  York,  it  would  be  upheld  as  a  tax  pure  and 
simple,  and  if  the  proceeds  of  the  tax  were  devoted  to  undertakings 
which  could  be  shown  to  benefit  the  property  taxed,  it  could  be  upheld 
in  other  states  as  a  local  assessment 

"It  would  seem,  therefore,  that  everywhere  throughout  the  country, 
a  tax  on  the  increment  of  land  value  in  a  city  would  be  proper  if  the 
proceeds  of  the  tax  were  placed  in  a  fund  from  which  improvements 
shown  to  benefit  the  whole  city  should  be  paid  for,  particularly  if  the 
tax  were  low.  For,  under  these  conditions,  it  would  not  be  said  in  a 
particular  case  that  the  tax  imposed  exceeded  the  benefit  conferred,  which 
might  be  presumed  from  the  actual  increment  of  value  of  the  land  upon 
which  the  tax  was  imposed. 

"In  states  like  New  York,  where  it  could  be  justified  as  a  tax  pure 
and  simple,  the  rate  might  be  made  much  higher,  for  it  would  not  be  so 
necessary  to  show  a  direct  relation  between  the  increment  of  value  and 
the  benefit. 

"Fourth,  progressive  taxation. — There  is  no  constitutional  objection 
imposed  by  the  federal  constitution  to  progressive  taxation.  The  pro- 
vision that  duties,  imposts,  and  excises  shall  be  uniform  throughout  the 
United  States  has  been  held  by  the  Supreme  Court  to  require  merely 
geographical  uniformity  (Knowlton  v.  Moore,  178  U.  8.^41),  and  pro- 
gressive inheritance  taxation  has  been  upheld,  although  it  must  be  ad- 
mitted that  the  court  has  intimated  that  the  progression  might  be  so  ex- 
cessive, or  be  dependent  upon  such  unreasonable  conditions,  as  to  be 
improper.  .  .  ." 

The  Supreme  Court  of  the  United  States  has  also  decided  that  the 
federal  constitution  imposes  no  obstacle  to  progressive  taxation  by  states, 
provided  that  the  classification  upon  which  the  progression  is  based  is 
reasonable. 


CITY  PLANNING  FINANCE  379 

cities  have  adopted  this  policy  of  freeing  improvements  partly 
or  wholly  from  taxation,  but  its  expediency  and  effect  are  still 
in  dispute. 

The  need  of  the  discovery  and  application  of  equitable 
methods  of  increasing  the  revenue  of  modern  cities  is  great; 
the  opportunities  of  municipalities  for  usefulness  are  con- 
stantly and  rapidly  increasing.  The  communities  that  do  not 
meet  these  responsibilities  are  soon  left  behind  in  the  race. 
The  burdens  upon  municipalities  are  also  increasing  with  the 
same  rapidity,  and  municipal  assets  are  lagging  far  behind. 
The  solution  of  the  problem  of  municipal  finance  is  therefore 
essential  not  only  to  the  proper  planning  and  construction  of 
cities,  but  to  their  well-being  and  very  life. 


PART  VI 
PLANNING  FOR   THE  PROMOTION   OF  BEAUTY 

The  Function  of  Beauty. — The  function  of  beauty  is  to 
give  pleasure.  Pleasure  is  an  essential  element  in  human  life; 
not  only  is  recreation  a  necessary  relief  from  labor,  but  for 
high  achievement  there  must  be  joy  in  the  work  performed. 
The  enjoyment  of  beauty  is  the  highest  form  of  pleasure  of 
which  human  beings  are  capable ;  no  age  in  the  world's  history, 
no  country  in  the  world,  which  has  failed  to  realize  this,  has 
been  truly  great. 

If  beauty  is  to  be  an  integral  part  of  our  existence,  it  should 
be  reflected  in  every  possible  phase  of  our  daily  environment 
The  city  dweller  needs  a  city  the  outward  aspect  of  which  inter- 
ests and  stimulates  him  as  he  goes  to  and  from  his  work,  and 
soothes  and  delights  him  in  his  hours  of  leisure.  A  city  built 
economically  and  efficiently  for  residence,  business  and  indus- 
try may  be  pleasing  to  the  eye.  There  is  a  beauty  in  construc- 
tion fitted  to  the  purposes  which  it  is  to  fulfill,  where  ornament 
is  not  an  excrescence  or  an  afterthought  but  an  essential  part 
of  the  structure  of  the  individual  building  or  the  city  as  a  whole. 
Beauty  is  harmony,  proportion, — above  all,  fitness.  The  object 
of  all  vital  art  is  "either  to  state  a  true  thing  or  to  adorn  a 
serviceable  one."  l 

Promotion  of  Beauty  a  Public  Purpose. — In  all  the 
civilized  countries  of  the  world  the  promotion  of  beauty,  in  this 
sense  of  the  word,  is  a  public  purpose.  To  this  end  these  coun- 
tries at  public  expense  create  national  and  state  departments  of 
art  or  impose  the  duties  appropriate  to  such  agencies  upon 
other  departments ;  maintain  art  schools ;  teach  art  in  the  public 
schools ;  found  art  museums  and  open  them,  free  of  charge,  to 

1  Ruskin,  Lectures  on  Art,  No.  4,  The  Relation  of  Art  to  Use. 


382  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  public;  beautify  public  buildings;  adorn  public  streets  and 
parks  with  monuments  and  statues ;  build  scenic  highways ;  and 
raise  the  money  for  these  purposes  by  public  taxation.  Un- 
questionably public  moneys  can  be  spent  and  the  power  of  pub- 
lic taxation  used  only  for  public  purposes ;  and  everywhere  the 
validity  of  these  transactions  is  unchallenged.2 

Eminent  Domain  to  Promote  Beauty. — Eminent  domain 
is  another  governmental  power  which  may  be  employed  to  pro- 
mote beauty.  Except  in  the  United  States  the  validity  of  the 
exercise  of  this  power  for  this  purpose  is  unquestioned;  8  but 
in  this  country,  although  there  were  no  decisions  of  our  courts 
to  that  effect,  it  was  formerly  the  prevailing  belief  that  it  could 
not  be  used.4  It  was  clearly  settled  in  law  that  if  utility  was  a 
purpose  to  be  attained  by  a  measure,  beauty  might  be  an  addi- 
tional purpose  and  even  the  real  motive  which  led  to  its  enact- 
ment ;  but  the  courts  can  inquire  only  into  legislative  acts.5  In 
accordance  with  this  doctrine,  trees,  healthful  and  pleasant,  as 

1  The  promotion  of  beauty  is  expressly  recognized  in  New  York  State 
as  a  public  purpose;  see  New  York,  "Municipal  Empowering  Act"  L, 
1913.  ch.  247,  sec.  2i ;  being  General  City  Law,  art.  ir-A,  sec.  21. 

It  is  often  difficult  to  prove  by  the  text  of  statutes  or  by  judicial 
decisions,  the  legality  of  practices  which  are  generally  accepted  without 
challenge.  It  may  be  pointed  out,  however,  that  in  all  countries  which 
attempt  to  protect  and  preserve  private  property  for  its  beauty,  the  power 
of  eminent  domain  may  be  used  as  a  last  resort  (see  p.  397,  ff.)  ;  that 
in  France  and  parts  of  Switzerland  the  right  to  employ  excess  condemna- 
tion to  promote  beauty  is  given  expressly  (France,  Decree  of  March  26, 
1852,  as  amended  by  par.  118  of  the  financial  law  of  July  13,  1911,  and 
by  the  law  of  April  10,  1912;  Lausanne,  Building  Police  Law  of  May  12, 
1898,  sec.  20)  ;  and  in  Belgium,  under  the  law  of  November  15,  1867,  by 
implication  (see  circular  of  Minister  of  Justice,  dated  November  12, 
1867.  in  Pasinomie  ou  Collection  Complete  des  Lois,  etc.,  Brussels,  1867. 
p.  286).  Expropriation  for  aesthetic  purposes  is  authorized  by  the  Town 
Planning  Acts  in  England  and  various  other  parts  of  the  British  Empire 
(for  references  to  these  acts,  see  p.  499,  ff.).  In  New  Zealand  land  may  be 
taken  to  preserve  the  beauties  of  scenery  (Public  Works  Act,  Consol. 
Stats.,  Vol.  IV,  p.  879.  sec.  14)  and  scenic  land  may  be  expropriated 
(Vol.  V,  No.  172).  Canada  has  purchased  her  national  battlefields  at 
Quebec  (Stats.,  1911,  ch.  6).  See  also  Statutes  of  Saskatchewan,  1916, 
given  on  page  392  of  this  work. 

*  There  are  judicial  dicta  to  that  effect: — Shoemaker  v.  U.  S.  147  U.  S. 
282  (1893);  Boston,  etc.,  Corp.  v.  Newman,  12  Pickering  (Mass.)  467 
(1832);  Woodstock  v.  Gallup,  28  Vt,  587  (1856).  It  may  be  doubted 
whether  the  more  recent  case  of  Farist  Steel  Co.  v.  Bridgeport,  60  Conn. 
278  (1891)  decides  anything  but  that  there  was  not  a  taking  for  the  pur- 
pose of  establishing  a  harbor  line  in  aid  of  navigation ;  although  there  are 
dicta  which  go  further. 

'See  pp.  21,  393,  note  19. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          383 

well  as  beautiful,  were  planted  along  city  streets,6  boulevards 
and  parkways  were  laid  out,  giving  opportunities  for  obtaining 
needful  sun  and  air  to  the  citizens  as  well  as  satisfying  their 
desire  for  the  adornment  of  their  city,  and  the  appearance  of 
cities  enhanced  in  countless  ways  without  offending  the  legal 
or  the  practical  instincts  of  the  community.  The  little  streams 
near  our  large  cities,  with  the  meadows  through  which  they 
flow,  are  a  menace  to  the  health  if  neglected  and  allowed  to  fill 
with  refuse  and  every  imaginable  filth ;  7  the  swamps  breed 

8  A  pioneer  statute,  providing  for  the  planting  and  care  of  shade  trees 
by  municipalities,  and  the  assessment  of  the  cost  upon  abutters  is  P.  L. 
New  Jersey  1893,  p.  496,  now  to  be  found  in  Comp.  Stats.,  1910,  Vol.  Ill, 
p.  3544,  being  sec.  335  and  ff.  of  title  called  "Municipal  Corporations,"  and 
frequently  amended  in  detail.  This  statute  has  been  adopted  in  substance 
or  principle,  or  has  led  to  the  enactment  of  statutes  to  serve  the  same 
purpose,  in  many  of  the  states  of  this  country  and  provinces  of  Canada. 
The  legal  and  practical  questions  involved  in  the  location,  ownership,  and 
care  of  parking  strips  are  also  important  and  difficult  to  settle.  Municipal 
forests  which  are  such  beautiful  and  healthful  pleasure  resorts  as  well 
as  sources  of  profit  abroad,  are  now  being  established  to  some  extent  in 
this  country. 

7  In  this  connection  the  work  of  the  Bronx  Parkway  Commission, 
organized  under  the  laws  of  New  York,  1907,  ch.  594,  1913,  ch.  757,  1916, 
ch.  599,  for  the  reclamation  of  the  Bronx  River,  flowing  through  West- 
chester  County,  and  New  York  City,  into  salt  water,  is  well  worth  study, 
and  is  set  forth  in  the  reports  of  the  commission,  of  which  that  for  1917 
and  that  for  1918,  are  especially  interesting.  In  its  1918  report  the 
commission  says : 

"Twenty  years  and  more  ago,  the  rapid  spread  of  the  City  of  New 
York  to  the  north,  in  what  is  now  the  Borough  of  the  Bronx,  and  the 
increasing  population  of  the  Westchester  communities,  lying  in  the  Bronx 
River  valley,  as  well  as  the  inevitable  consequences  of  unchecked  pollu- 
tion to  the  Bronx  River  by  these  populous  and  politically  independent 
centers  along  its  banks,  gradually  transformed  what  was  once  a  small 
river  of  pure  water  into  a  foul  stream.  Too  polluted  to  sustain  aquatic 
life,  it  became  a  menace  to  the  health  of  the  community,  obstructed  as 
it  was  at  many  places  by  ever-growing  masses  of  debris  and  rubbish. 
Periodically  floods  backed  the  foul  waters  upon  the  adjacent  lowlands; 
or,  sometimes  by  their  force  swept  the  unwholesome  obstructions  down 
the  stream  and,  subsiding,  deposited  them  some  distance  from  the  normal 
river  channel  or  floated  the  whole  foul  mass  into  the  beautiful  lakes 
which  constitute  one  of  the  greatest  charms  of  Bronx  Park  [in  the  Bor- 
ough of  the  Bronx,  New  York  City]. 

"While  this  increasing  menace  to  health  was  the  immediate,  pressing, 
and  unavoidable  occasion  for  legislative  action  to  eliminate  the  nuisance 
and  danger  of  the  filth-choked  stream,  the  City  of  New  York  had  another 
vital  need  for  such  reclamation  of  the  valley  of  the  Bronx  River  as  would 
provide  a  permanent  outlet  for  its  fast-growing  motor  traffic,  from  the 
cramped  and  growing  metropolis  to  the  open  country  to  the  north.  This 
need  was  second  in  importance  only  to  the  necessity  for  the  abatement 
of  the  river  pollution.  ...  It  was  apparent  that  an  unobstructed  avenue 
for  motor  traffic  from  the  parks  established  in  The  Bronx,  through  to 


384          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

mosquitoes  and  spread  malaria ;  the  rough  broken  land  is  fitted 
for  housing  or  industrial  use  only  at  great  expense;  and  all 
these  lands  are  not  only  the  most  beautiful,  but  the  cheapest 
property  that  can  be  acquired  for  park  purposes. 

The  belief  that  eminent  domain  should  not  be  used  in  this 
country  to  promote  beauty,  was  to  a  considerable  extent  due 
to  the  distrust  of  the  narrowly  practical  man,  to  whom  the  love 
of  beauty  is  a  "mere  sentiment,"  and  recreation  a  waste  of  time. 
The  strength  and  the  wane  of  such  prejudices  are  indicated 
by  two  decisions  of  the  Supreme  Court  of  the  United 
States  worthy  of  citation  in  this  connection;  the  first  of 
these  cases,  Shoemaker  v.  U.  S.8  decided  in  1892,  holds  that 

the  open  country  to  the  north,  would  be  of  incalculable  value  to  the 
metropolis." 

Various  solutions  of  the  problem  were  suggested  from  time  to  time ; 
of  which  the  best  and  cheapest,  also  furnishing  a  beautiful  and  healthful 
parkway,  playgrounds,  and  parks,  was  finally  adopted,  was,  to  take  the 
river  channel,  and  sufficient  adjacent  area  to  provide  for  a  parkway,  for 
perpetual  public  use.  The  fact  that  the  Bronx  River  flowed  through  both 
Westchester  County  and  New  York  City,  raised  a  jurisdictional  difficulty, 
which  was  solved  by  the  appointment  of  a  commission  to  do  the  work 
by  the  state,  making  it  responsible  to  the  state,  the  city  of  New  York 
and  the  county  of  Westchester,  and  imposing  three-quarters  of  the  ex- 
pense upon  the  city  and  the  remainder  on  the  county.  Much  of  the  land 
has  been  acquired,  at  very  reasonable  figures,  by  private  purchase.  The 
entire  cost  of  administration,  up  to  January  i,  1918,  had  amounted  to 
three  and  one-half  per  cent  of  the  value  of  the  land  acquired. 

"To  realize  the  full  value  of  what  has  been  accomplished  in  the  elimi- 
nation of  contamination  from  the  Bronx  River,"  the  commission  goes 
on  to  say,  "it  is  only  necessary  to  compare  its  present  condition  with  that 
of  other  streams,  such  as  the  Passaic  River,  which  has  recently  engaged 
the  attention  of  the  United  States  Supreme  Court,  through  a  suit  brought 
by  the  State  of  New  York  to  restrain  the  Passaic  Valley  Sewerage  Com- 
mission from  carrying  out  plans  for  diverting  raw  sewerage  from  the 
river  and  discharging  it  through  a  sewer  into  New  York  Harbor.  The 
proceedings  adduced  abundant  testimony  to  show  that  pollution  of  the 
Passaic  River  by  waste  from  breweries,  tanneries,  and  other  factories, 
as  well  as  by  organic  filth  from  various  sewers,  has  destroyed  real  estate 
values  along  the  river  valley. 

"In  a  report  of  the  proceedings  in  the  Bulletin  of  the  Merchants'  Asso- 
ciation of  New  York  for  Monday,  October  14,  1918,  is  this  significant 
passage : 

"'Commissioner  Childs.  of  the  Passaic  Valley  Sewerage  Commission 
testified  that  the  Passaic  River  was  an  O|H-M  M-WCT;  that  the  stench  arising 
from  the  river  destroyed  property  values  and  made  real  estate  alm.M 
unsalable;  that  conditions  were  so  offensive  during  the  summer  months 
th:it  many  factory  employees  had  to  abandon  the  locality  and  that  others 
were  made  seriously  ill ;  that  the  waters  of  the  Passaic  River  were  black 
with  pollution.'" 

•i.;;  £2. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          #5 

land  may  be  condemned  for  a  public  park.     The  Court  says: 

"In  the  memory  of  men  now  living,  a  proposition  to  take  private 
property,  without  the  consent  of  its  owner,  for  a  public  park,  and 
to  assess  a  proportionate  part  of  the  cost  upon  real  estate  benefited 
thereby,  would  have  been  regarded  as  a  novel  exercise  of  legislative 
power. 

"It  is  true  that,  in  the  case  of  many  of  the  older  cities  and  towns, 
there  were  commons  or  public  grounds,  but  the  purpose  of  these  was 
not  to  provide  places  for  exercise  and  recreation,  but  places  on  which 
the  owners  of  domestic  animals  might  pasture  them  in  common,  and 
they  were  generally  laid  out  as  part  of  the  original  plan  of  the  town 
or  city. 

"It  is  said,  in  Johnson's  Cyclopaedia,  that  the  Central  Park  of 
New  York  was  the  first  place  deliberately  provided  for  the  inhabitants 
of  any  city  or  town  in  the  United  States  for  exclusive  use  as  a 
pleasure  ground  for  rest  and  exercise  in  the  open  air.  However 
that  may  be,  there  is  now  scarcely  a  city  of  any  considerable  size 
in  the  entire  country  that  does  not  have,  or  has  not  projected,  such 
parks. 

"The  validity  of  the  legislative  acts  erecting  such  parks,  and 
providing  for  their  cost,  has  been  uniformly  upheld."9 

The  second  case  to  be  cited — U.  S.  v.  Gettysburg,  Elec. 
R'y  Co.,10  decided  in  1896 — held  that  the  field  at  Gettysburg 
might  be  taken  by  the  United  States  Government  to  preserve 
the  memory  of  a  great  event  in  our  history  and  stimulate  the 
sentiment  of  patriotism,  so  essential  to  national  life.  The  sig- 
nificance of  these  cases  lies  not  so  much  in  the  decisions  them- 
selves as  in  the  fact  that  the  side  which  was  ultimately  de- 
feated considered  it  worth  while  to  carry  them  all  the  way  up 
to  the  court  of  last  resort  in  this  country. 

In  1892,  in  the  Shoemaker  case  just  cited,  it  was  intimated 
that  although  land  could  be  condemned  for  purposes  of  recrea- 
tion it  could  not  be  taken  for  aesthetic  purposes.  In  1899,  how- 
ever, a  Massachusetts  court  of  last  resort,  in  deciding  the  case 
of  Attorney  General  v.  Williams,11  delivered  the  leading  opin- 

*  Citing  the  cases. 

10i6o  U.  S.  668. 

11 174  Mass.  476  (1809).  See  also  Same  v.  Same,  178  Mass.  330  (1901), 
174  Mass.  476  was  affirmed  by  Williams  v.  Parker,  188  U.  S.  491  (1902- 
1903).  A  further  development  of  the  same  proceedings,  dealing  with 
the  question  of  damages  will  be  found  in  Williams  v.  Boston,  190  Mass. 
541  (1005-1906). 


386          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ion  in  favor  of  the  employment  of  this  power  for  the  promo- 
tion of  beauty. 

In  iSgS,12  Massachusetts  had  passed  a  statute  limiting, 
with  compensation,  the  height  of  privately  owned  buildings 
around  the  public  Copley  Square,  in  Boston.  In  upholding  this 
restriction  the  court  says  in  part : 

"Looking  to  all  its  provisions  in  connection  with  the  place  to 
which  they  apply,  it  seems  to  have  been  intended  as  a  taking  of  rights 
in  property  for  the  benefit  of  the  public  who  use  Copley  Square. 
It  adds  to  the  public  park  rights  in  light  and  air  and  in  the  view 
over  adjacent  land  above  the  line  to  which  buildings  may  be  erected. 
These  rights  are  in  the  nature  of  an  easement  created  by  the  statute 
and  annexed  to  the  park.  Ample  provision  is  made  for  compensation 
to  the  owners  of  the  servient  estates.  In  all  respects  the  statute  is 
in  accordance  with  the  laws  regulating  the  taking  of  property  by 
right  of  eminent  domain,  if  the  Legislature  properly  could  determine 
that  tne  preservation  or  improvement  of  the  park  in  this  particular 
was  for  a  public  use.  The  uses  which  should  be  deemed  public  in 
reference  to  the  right  of  the  Legislature  to  compel  an  individual  to 
part  with  his  property  for  a  compensation,  and  to  authorize  or  direct 
taxation  to  pay  for  it,  are  being  enlarged  and  extended  with  the 
progress  of  the  people  in  education  and  refinement.  Many  things 
which  a  century  ago  were  luxuries  or  were  altogether  unknown,  have 
now  become  necessaries.  It  is  only  within  a  few  years  that  lands 
have  been  taken  in  this  country  for  public  parks.  Now  the  right  to 
take  lands  for  this  purpose  is  generally  recognized  and  frequently 
exercised.  Foster  v.  Park  Commissioners,  133  Mass.  321.  Shoemaker 
v.  United  States,  147  U.  S.  282.  Many  statutes  have  been  passed 
in  this  Commonwealth  allowing  taxation  for  purposes  affecting  the 
health,  comfort,  pleasure,  and  recreation  of  the  people  and  thus  con- 
ducing to  their  welfare.  In  Kingman  v.  Brockton,  153  Mass.  255,  the 
court  said,  referring  to  a  statute  authorizing  the  raising  of  money 
by  taxation  for  the  erection  of  a  memorial  hall :  'That  statute  .  .  . 
may  be  vindicated  on  the  same  grounds  as  statutes  authorizing  the 
raising  of  money  for  monuments,  statues,  gates  or  archways,  celebra- 
tions, the  publication  of  town  histories,  parks,  roads  leading  to  points 
of  fine  natural  scenery,  decorations  upon  public  buildings,  or  other 
public  ornaments  or  embellishments,  designed  merely  to  promote  the 
general  welfare,  either  by  providing  for  fresh  air,  or  recreation,  or 
by  educating  the  public  taste,  or  by  inspiring  sentiments  of  patriotism 
or  of  respect  for  the  memory  of  worthy  individuals.  The  reasonable 
use  of  public  money  for  such  purposes  has  been  sanctioned  by  several 

"Mass.  St.  1898,  ch.  452. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          387 

different  statutes,  and  the  constitutional  right  of  the  Legislature  to 
pass  such  statutes  rests  on  sound  principles.'  See  also  Higginson  v. 
Nahant,  1 1  Allen  530,  and  Hubbard  v.  Taunton,  140  Mass.  467.  In 
Olmstead  v.  Camp.  33  Conn.  532,  551,  the  court,  in  discussing  the 
line  between  public  and  private  uses,  says:  'From  the  nature  of  the 
case  there  can  be  no  precise  line.  The  power  requires  a  degree  of 
elasticity  to  be  capable  of  meeting  new  conditions  and  improvements 
and  the  ever  increasing  necessities  of  society.  The  sole  dependence 
must  be  on  the  presumed  wisdom  of  the  sovereign  authority,  super- 
vised, and  in  cases  of  gross  error  or  extreme  wrong,  controlled  by 
the  dispassionate  judgment  of  the  courts.'  The  grounds  on  which 
public  parks  are  desired  are  various.  They  are  to  be  enjoyed  by 
the  people  who  use  them.  They  are  expected  to  minister,  not  only 
to  the  grosser  senses,  but  also  to  the  love  of  the  beautiful  in  nature 
in  the  varied  forms  which  the  changing  seasons  bring.  Their  value 
is  enhanced  by  such  touches  of  art  as  help  to  produce  pleasing  and 
satisfactory  effects  on  the  emotional  and  spiritual  side  of  our  nature. 
Their  influence  should  be  uplifting  and,  in  the  highest  sense,  educa- 
tional. If  wisely  planned  and  properly  cared  for  they  promote  the 
mental  as  well  as  the  physical  health  of  the  people.  For  this  reason 
it  has  always  been  deemed  proper  to  expend  money  in  the  care  and 
adornment  of  them  to  make  them  beautiful  and  enjoyable.  Their 
aesthetic  effect  never  has  been  thought  unworthy  of  careful  con- 
sideration by  those  best  qualified  to  appreciate  it.  It  hardly  would 
be  contended  that  the  same  reasons  which  justify  the  taking  of  land 
for  a  public  park  do  not  also  justify  the  expenditure  of  money  to 
make  the  park  attractive  and  educational  to  those  whose  tastes  are 
being  formed  and  whose  love  of  beauty  is  being  cultivated."  1 

18  There  are  statutes  limiting,  with  compensation,  the  height  of  build- 
ings in  the  neighborhood  of  the  State  House  in  Boston  (1899  ch.  457; 
1901  ch.  525,  1902  ch.  543)  and  the  State  Capitol  in  Hartford,  Connecticut 
(Laws  1907,  ch.  186)  ;  and  in  the  neighborhood  of  the  proposed  court 
house  in  New  York  City,  the  Municipality,  under  Laws  1911,  ch.  880, 
sec.  isb.  (added  to  Laws  1903,  ch.  336)  is  given  the  right  "to  acquire  as 
part  of  the  real  estate  or  interests  therein  for  the  purposes  of  this  act 
such  easements  of  light,  air  and  access  in,  through,  under  or  over  other 
neighboring  real  estate  or  buildings,  as  considerations  of  convenience, 
health  or  beauty  may  suggest,  including  among  the  easements  which  may 
be  acquired  the  right  to  limit  and  restrict  the  height,  size,  character  and 
style  of  neighboring  buildings,  either  existent  or  to  be  erected,  as  also 
the  uses  to  which  the  same  or  any  neighboring  land  may  be  put.  For 
the  purposes  of  this  act;  any  property  or  buildings  upon  which  any  such 
limitation  or  restriction  is  placed  shall  be  deemed  a  part  of  the  court- 
house site  to  the  extent  to  which  any  interest  therein  shall  be  taken  here- 
under,  or  restrictions  imposed.  .  .  ." 

For  a  statute  of  Saskatchewan,  Canada,  to  accomplish  these  objects 
without  compensation,  see  p.  392  of  this  work. 

Massachusetts  (Gen.  Stats.  1920,  ch.  45,  sec.  n)  has  provided  for  the 
establishment,  with  compensation,  of  a  building  line  opposite  parks,  and 


388          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Recent  cases,  so  far  as  they  have  arisen,  hold,  and  late 
treatises  on  the  subject  show,  that  eminent  domain  may  now 
be  used  in  this  country  for  the  fostering  and  protecting  of  the 

the  limitation  of  heights  of  buildings  at  that  line,  and  such  limitations 
under  the  police  power  have  been- held  to  be  unconstitutional;  Com.  v.  Bos- 
ton Adv.  Co.,  188  Mass.  348  (1005).  See  in  this  connection  In  re  City 
of  New  York,  68  N.  Y.  Supp.  196,  200,  57  App.  Div.  166,  referring  to 
Laws  of  1899,  ch.  257;  St.  Louis  in  its  charter  (art.  VI,  sec.  i)  has  au- 
thorized the  exclusion  with  compensation  of  business  structures  and  pro- 
hibited the  carrying  on  of  business  on  lands  fronting  on  parks ;  Oregon 
(1921,  ch.  343)  authorizes  the  State  Highway  Commissioner  to  acquire 
rights  of  way  along  state  highways  for  the  preservation  of  scenic  beauty. 
For  the  law  with  regard  to  the  regulation  of  advertising,  and  building  lines 
near  parks,  see  pp.  184,  387,  note  13,  p.  395,  note  22. 

A  most  interesting  bill  for  the  improvement  of  the  appearance  of 
Washington,  D.  C,  the  payment  of  damages  to  those  injured  and  the 
collection  of  the  amount  of  these  damages  from  the  owners  of  property 
benefited,  as  special  or  benefit  assessments,  which  never  became  a  law, 
was  introduced  in  Congress  in  1910  (January  24;  6ist  Cong.,  2nd  Session, 
H.  R.  19060,  identical  with  S.  5715).  It  authorizes  the  commissioners  for 
the  district  (sec.  i)  to  select  certain  highways,  impose  restrictions  upon 
land  abutting  on  them,  including  the  establishment  of  building  lines,  and 
prohibitions  as  to  the  erection,  alteration  or  use  of  buildings  for  business, 
and  to  make  "such  requirements  as  to  height  of  buildings,  materials  of 
construction,  and  architectural  design  as  shall  secure,  in  the  judgment 
of  said  commissioners,  the  beautiful  and  harmonious  appearance,  as  viewed 
from  the  public  streets,  of  all  structures  to  be  erected  or  altered  on  the 
land  to  which  said  restrictions  shall  apply :  Provided,  That  no  such  desig- 
nation shall  be  made  unless  the  owners  of  ninety  per  centum,  or  more, 
measured  by  the  front  foot,  of  the  property  fronting  upon  the  street, 
avenue,  or  part  or  parts  thereof  under  consideration,  shall  in  due  form 
have  dedicated,  or  granted,  or  conveyed,  or  assigned  to  the  District  of 
Columbia,  in  consideration  of  benefits  received  or  to  be  received,  ease- 
ments in,  to  and  upon  their  property  by  virtue  of  which  said  special  re- 
strictions may  be  established :  Provided  further,  That  the  Commissioners 
of  the  District  of  Columbia  may  exercise  their  judgment  as  to  whether 
such  special  restrictions  shall  cover  only  ninety  per  centum  or  more  of 
frontage,  the  owners  of  which  have  conveyed  easements  as  above  pro- 
vided, or,  in  addition  to  such  frontage,  any  portion  of  the  remaining 
property  fronting  on  the  highway,  street,  or  avenue,  or  part  or  parts  there- 
of under  consideration. 

"Sec.  2.  That  if  said  commissioners  in  the  exercise  of  their  judg- 
ment shall  designate  highways,  streets,  or  avenues,  or  any  part  or  parts 
thereof,  and  shall  impose  any  special  restrictions  authorized  by  this  act  so 
as  to  include  property  fronting  on  any  such  highway,  street,  or  avenue 
which  has  not  been  dedicated  or  granted  or  conveyed  or  assigned  t<>  tin- 
District  of  Columbia,  then,  at  any  time  within  one  year  from  the  date 
of  any  such  designation,  and  not  thereafter,  the  owner  or  owners  thereof, 
or  any  person  having  an  interest  therein,  may  recover  as  damages  ju->t 
compensation  from  the  District  of  Columbia  for  the  taking,  if  any,  of 
the  easements  involved  in  said  designation,  subject  to  deduction  for  Ix-iv 
fits;  and  said  damages  and  benefits  and  all  benefits  herein  mentioned  shall 
be  appraised  by  a  commission  composed  of  three  capable  and  disinterested 
persons,  to  be  appointed  by  the  Supreme  Court  of  the  District  nf  Co- 
lumbia, holding  a  district  court  of  the  United  States  for  said  District. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          389 

beautiful  in  nature  and  art.  This  evolution  in  our  law  is  due 
more  to  general  practice  and  its  effect  on  public  opinion  than 
to  legal  decisions.  The  growing  recognition  of  ethical  values, 
as  indicated  in  the  Gettysburg  case,  and  of  the  need  of  rest  and 
recreation  in  pleasant  surroundings,  as  so  well  stated  in  the 
Shoemaker  case,  have  been  potent  factors  in  this  evolution ;  but 
perhaps  the  greatest  influence  has  been  the  constant  practice  of 
spending  money  raised  by  taxation  for  the  adornment  of  public 
places.  This  fact  is  presented  clearly  and  convincingly  by 
Nichols  in  the  latest  edition  of  his  standard  work  on  Eminent 
Domain  14  as  follows  : 

"From  the  earliest  recorded  times  public  money  has  been  spent 
to  make  public  buildings  attractive,  and  under  American  constitutions 
it  has  long  been  considered  proper  for  the  nation,  state  or  city  to 
erect  memorial  halls,  monuments,  and  statues  and  to  plan  public 
buildings  upon  a  more  expensive  scale  than  if  designed  for  utility 
alone.  The  public  mind  has  thus  been  educated  to  feel  that  aesthetic 

upon  application  in  writing,  made  within  said  year  and  not  thereafter 
by  such  owner  or  owners  or  persons  having  an  interest  against  the  Dis- 
trict of  Columbia ;  and  upon  failure  of  any  such  owner  or  owners  or  per- 
son having  said  interest  to  thus  present  such  claim  within  said  period, 
said  right  shall  cease  and  determine. 

"Sec.  3.  That  the  Commissioners  of  the  District  of  Columbia  be,  and 
they  are  hereby,  authorized  and  directed,  as  soon  as  practicable  after 
every  recovery  of  damages  as  just  compensation  as  in  this  Act  provided, 
to  institute  proceedings  in  said  court  to  assess  the  amount  of  said  dam- 
ages, the  interest  thereon,  and  all  costs  whatsoever  of  the  proceeding 
wherein  the  said  damages  have  been  ascertained  against  and  upon  all 
property  covered  by  said  designation,  pro  rata  in  proportion  as  said  prop- 
erty may  be  found  to  be  benefited,  omitting  from  consideration  all  property 
found  by  the  court  in  the  proceeding  to  recover  said  damages  as  just 
compensation  to  have  been  damaged  more  than  benefited." 

*  Sees.  4-7.     Procedure  in  assessing  benefits. 

"Sec.  8.  That  the  Commissioners  of  the  District  of  Columbia  are 
hereby  authorized  to  appoint  an  advisory  commission  to  consist  of  the 
inspector  of  buildings  of  the  District  of  Columbia,  the  municipal  architect 
of  said  District,  two  architects  to  be  nominated  by  the  Washington  Chap- 
ter of  the  American  Institute  of  Architects,  and  a  landscape  gardener, 
the  two  first  named  officials  to  serve  without  compensation  and  the  other 
members  of  said  commission  to  receive  such  compensation  as  may  be 
fixed,  from  time  to  time,  by  said  commissioners.  The  duties  of  said 
commission  shall  be  to  advise  said  commissioners  in  all  matters  connected 
with  the  purposes  of  this  act,  and  to  perform  such  other  duties  as  may 
be  assigned  to  it  by  the  said  commissioners." 

*  Sec.  9.    Appropriation  to  carry  out  the  act. 

*  Sec.  10.     Enforcement  and  penalties. 

14  Second  Edition   (1917),  Vol.  I,  pp.  162-163. 
*  Summarized. 


390  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

and  artistic  gratification  are  purposes  public  enough  to  justify  the 
expenditure  of  public  money,  and  to  authorize  the  exercise  of  eminent 
domain  in  behalf  of  similar  purposes  was  but  a  short  step  beyond."  " 

'"While  there  are  some  dicta  that  property  cannot  be.  condemned 
merely  for  ornamental  purposes  or  for  purposes  of  pleasure,  and  there 
is  little,  if  any,  direct  authority  to  the  contrary,  yet  the  undoubted  ten- 
dency of  the  more  recent  decisions  is  in  the  opposite  direction,  ami  the 
time  is  not  far  distant,  it  is  believed,  when  it  will  be  the  accepted  rule 
that  a  municipality  may  be  authorized  to  condemn  property  for  aesthetic 
purposes."  McQuillin  Alunic.  Corps.  (1912  sec.  1485.) 

"Public  money  may  be  expended  in  acquiring  property  to  be  used  for 
purposes  largely  aesthetic  in  their  nature,  such  as  parks,  boulevards,  and 
museums,  and  in  beautifying  and  adorning  public  buildings  and  other 
public  property,  already  possessed.  So,  also,  may  the  property  of  indi- 
viduals be  condemned  for  such  purposes  on  payment  of  compensation." 
Note  on  "Exercise  of  Police  Power  for  Esthetic  Purposes,"  34  Lawyers 
Reports  Annotated  (1911),  pp.  998-999. 

"It  is  not  necessary  that  every  part  of  all  highways  should  be  used 
for  the  passage  of  vehicles  and  pedestrians.  It  is  proper  that  some  regard 
should  be  had  for  the  aesthetic  tastes,  the  comfort,  health,  and  conveni- 
ence of  the  public;  and  if  the  legislature  had  enacted  that  Clinton  Avenue 
should  be  increased  in  width  to  the  extent  provided  in  this  act,  and  had 
provided  that  a  strip  in  the  center  of  the  highway,  forty  feet  wide,  should 
be  devoted  to  trees  and  flowers,  as  is  done  in  many  of  our  cities,  it  would 
hardly  have  been  questioned  that  this  constituted  a  public  use,  in  the  same 
sense  that  a  park  preserve  is  generally  recognized  as  a  public  use.  Shoe- 
maker v.  U.  S.,  147  U.  S.  282,  297.  13  Sup.  St.  361,  37  L.  Ed.  170,  and 
authorities  there  cited.  Because  the  legislature  has  preferred  to  leave 
this  breathing  space  upon  the  sides  of  the  street,  subject  to  the  limited 
use  of  the  owners  of  the  fee,  does  not  change  its  essential  character,  and 
the  improvement  is  undoubtedly  much  less  expensive  than  the  one  which 
is  suggested  as  within  the  legislative  discretion."  In  re  City  of  New 
York.  68  N.  Y.  S.  196,  200,  57  App.  Div.  166,  affirmed  without  opinion  in 
167  N.  Y.  624  (1901);  sometimes  cited  as  "In  the  matter  of  Clinton  Ave- 
nue." The  New  York  law  referred  to  is  1899,  ch.  257. 

I'nder  chapter  170  of  the  Laws  of  New  York  for  1900,  the  Commis- 
sioners of  Palisades  Interstate  Park  were  authorized  to  condemn  such 
land  in  the  vicinity  of  the  Palisades,  within  certain  limits,  "as  may  in 
their  opinion  be  proper  and  necessary  to  be  reserved  for  the  purpose  of 
establishing  a  State  Park  and  thereby  preserving  the  scenic  beauty  of 
the  Palisades."  In  a  case  under  this  statute  it  was  decided  that  "the 
taking  of  land  used  as  a  stone  quarry  alone:  the  Palisades  of  the  Hudson 
and  adjoining  the  state  park  for  the  purpose  of  preserving  the  scenic 
beauty  of  the  river  and  of  the  park,  is  a  taking  for  a  'public  use'  though 
the  land  itself  is  so  rugged  as  not  to  be  adapted  for  use  as  a  park" 
Bunyan  v.  Commissioners  of  Palisades  Interstate  Park,  1915.  153  N.  Y.  S. 
622.  See  also  Foster  v.  Park  Com'rs.,  133  Mass  .u>i  (iXXjt 

The  appropriation  of  the  water  of  a  stream  for  a  waterfall  essential 
to  the  beauty  of  a  summer  resort,  is  a  legal  appropriation  for  it,  under 
the  Colorado  law  which  gives  the  first  taker  the  legal  right  to  the  water; 
and  a  company  demanding  it  for  commercial  uses,  cannot  claim  that  such 
uses  are  the  only  beneficial  ones.  In  so  deciding  the  court  says : 

"Is  it  no  benefit  to  the  public  to  spend  money  in  making  a  beautiful 
place  in  nature  visible  and  enjoyable?  ...  It  is  a  benefit  to  the  weary, 
ailing  and  feeble  that  they  can  have  the  wild  beauties  of  nature  placed 
at  their  convenient  disposal,  k  a  piece  of  canvas  valuable  only  for  a 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          3Qi 

Promotion  of  Beauty  under  Police  Power. — It  is 
neither  possible  nor  desirable  in  all  cases  to  attempt  to  promote 
the  aesthetic  or  any  other  phase  of  the  public  welfare  by  the 
expenditure  of  public  money.  If  the  number  of  people  affected 
by  any  measure  is  great,  compensation  for  the  resulting  limita- 
tion of  property  rights  is  often  impracticable,  and  regulation 
without  compensation  under  the  police  power  must  be  resorted 
to  or  the  desired  result  will  be  practically  unattainable.  The 
question  arises  in  any  given  class  of  cases  whether  regulation 
without  compensation  can  reasonably  and  properly  be  imposed, 
the  decisions  turning  upon  the  answer  to  such  questions  as 
whether  the  sacrifice  demanded  is  too  great  and  the  end  to  be 
attained  sufficiently  important. 

If  the  city  dweller  is  to  live  in  pleasing  surroundings,  not 
only  public  property  but  private  property  exposed  to  general 
view  must  be  pleasing.  This  consideration  applies  especially  to 
the  city  streets.  The  street,  as  legally  defined,  consists  of  the 
land  within  the  street  lines;  the  street  to  the  ordinary  citizen 
includes  those  parts  of  the  buildings  or  other  structures  which 
border  it  and  which  he  sees,  and  is  intended  to  see,  when  pas- 
ing  through  it;  indeed  to  him  the  character  of  the  street  is  in 
these  structures  much  more  than  in  the  mere  street  surface. 
Fifth  Avenue  in  its  street  surface  is  not  peculiarly  distinguished 
from  many  other  of  the  streets  of  New  York ;  it  is  the  buildings 
abutting  on  Fifth  Avenue  that  make  it  one  of  the  best  known 
thoroughfares  in  the  world. 

In  all  civilized  countries  money  raised  by  public  taxation  is 
spent  to  erect  public  buildings,  to  acquire  for  them  suitable 
sites,  and  in  countless  ways  to  make  the  appearance  of  land 

tent-fly,  but  worthless  as  a  painting?  Is  a  block  of  stone  beneficially  used 
when  put  into  the  walls  of  a  dam,  and  not  beneficially  used  when  carved 
into  a  piece  of  statuary?  Is  the  test  dollars,  or  has  beauty  of  scenery, 
rest,  recreation,  health,  enjoyment,  something  to  do  with  it?  ...  When 
the  defendant  company  says  the  complainants  are  putting  the  fall  of  the 
water  to  no. beneficial  use,  it  means  that  the  complainants  are  not  ruining 
the  beautiful  scenery  for  cash."  Cascade  Town  Co.  v.  Empire  Water 
&  Power  Co.,  181  Fed.  Rep.  ion  (1910). 

It  was  long  ago  held  that  roads  might  be  laid  out  to  provide  access 
to  places  of  beauty;  Higginson  v.  Nahant,  n  Allen  (Mass.)  530  (1866). 

See  in  this  connection,  Appeal  of  Rees,  8  Sadler  (Penn.)  582  (1888). 
Consult  also  20  Corpus  Juris,  583. 


392  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

abutting  on  public  streets  attractive ;  but  evidently  most  of  this 
abutting  land  must  and  should  be  in  private  use  and  cannot  be 
made  pleasing  to  the  passerby  at  public  expense.  If  this  is  to 
be  accomplished  to  any  considerable  extent  it  must  be  by  restric- 
tions imposed  without  compensation;  and  it  only  remains  to 
determine  whether  regulations  to  this  end  which  will  not  be 
unreasonably  burdensome  to  the  private  owner  can  be  devised 
to  bring  about  this  result.  In  spite  of  the  many  difficulties 
involved,  European  countries  and  Canada  on  this  side  of  the 
water,16  have  found  it  possible  to  make  and  enforce  such  regu- 
lations; but,  except  for  the  amendment  of  the  Massachusetts 
constitution,  authorizing  the  regulation  of  bill  boards,17  we  in 
this  country  have  not  as  yet  devised  any  method  of  doing  so; 
for  under  our  state  constitutions  the  police  power  cannot  be 
used  to  promote  civic  beauty;  18  although  if  the  main  purpose 

16  In  the  province  of  Quebec,  Canada,  under  R.  S.  1909,  art.  5638,  par. 
No.  i,  municipal  councils  may  pass  by-laws  to  regulate  the  architecture, 
dimensions  and  symmetry  of  buildings  in  certain  streets;  and  the  munici- 
pal council  of  the  city  of  Quebec,  in  an  amendment  to  its  charter  (Laws, 
1909,  ch.  80,  sec.  4)  is  given  the  same  power. 

In  this  connection,  the  following  statute  of  the  Province  of  Saskatche- 
wan, Canada  (1916,  ch.  19),  is  of  interest: — 

"ESTABLISHING  A  MUNICIPAL  CENTER 

"211.  In  the  event  of  the  council  acquiring  land  for  the  establishment 
of  a  municipal  center,  with  a  view  to  grouping  together  in  some  central 
location  the  municipal  offices  and  other  buildings  of  a  public  character, 
it  shall  be  in  the  power  of  the  council  to  pass  bylaws  or  regulations  pre- 
scribing the  height,  structural  character  and  architectural  features  of  all 
buildings  on  lands  fronting  on  or  adjoining  such  municipal  center  and 
the  uses  to  which  such  buildings  may  be  put.  and  prohibiting  the  use  of 
any  such  buildings  on  such  frontage  or  adjoining  lands  for  the  exhibition 
of  advertisement  hoardings,  or  the  holding  of  travelling  shows,  or  for 
any  other  purpose  which  the  council  may  deem  jesthetically  offensive  or 
obnoxious,  having  regard  to  the  character  of  the  locality  as  a  municipal 
center : 

"Provided  that  the  council  shall  not  be  liable,  in  respect  of  any  such 
bylaws  or  regulations  or  the  enforcement  thereof,  to  make  compensation 
to  the  owners  or  occupiers  of  lands  or  buildings  affected  thereby,  except- 
ing in  the  event  of  any  building  having  to  be  taken  down,  removed  or 
altered  in  consequence  of  such  bylaws  or  regulations,  in  which  case  the 
amount  of  compensation  shall,  failing  agreement,  be  determined  by  arbi- 
tration in  the  manner  provided  for  by  part  X  of  this  Act." 

11  See  p.  395,  note  22. 

"McQuillin.  Munic.  Corps.,  Vol.  Ill,  sec.  929,  and  cases  there  cited. 
See  to  the  contrary,  however,  Churchill  ct  al.  v.  Rafferty,  Collector,  in 
the  Supreme  Court  of  the  Philippines,  HIT..  i<>!5  (14  Official  Gazette,  p. 
383,  Feb.  16,  1916).  and  the  long  editorial  on  the  case  in  the  New  York 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          393 

of  the  measure  in  question  justifies  the  employment  of  that 
power,  the  promotion  of  beauty  may  be  a  subsidiary  considera- 
tion.19 Legal  writers  have  not  all  been  reconciled  to  the  law 
as  thus  stated ;  and  the  courts  have  on  several  occasions,  in  their 
dicta,  shown  the  same  feeling.20 

Law  Journal  of  October  16,  1916,  in  which,  after  stating  its  belief  that 
some  state  in  this  country  would  be  courageous  and  wise  enough  to  up- 
hold the  aesthetic  regulation  of  bill  boards  under  the  police  power,  that 
paper  quotes  among  others,  the  following  passages  from  the  opinion  of 
the  court : 

"The  success  of  billboard  advertising  depends  not  so  much  upon  the 
use  of  private  property  as  it  does  upon  the  use  of  the  channels  of  travel 
used  by  the  general  public.  Suppose  that  the  owner  of  private  property, 
who  so  vigorously  objects  to  the  restriction  of  this  form  of  advertise- 
ment, should  require  the  advertiser  to  paste  his  posters  upon  the  bill- 
boards so  that  they  would  face  the  interior  of  the  property  instead  of 
the  exterior.  Billboard  advertising  would  die  a  natural  death  if  this 
were  done,  and  its  real  dependency  not  upon  the  unrestricted  use  of  pri- 
vate property,  but  upon  the  unrestricted  use  of  the  public  highways  is 
at  once  apparent.  Ostensibly  located  on  private  property,  the  real  and 
sole  value  of  the  billboard  is  its  proximity  to  the  public  thoroughfares. 
Hence  we  conceive  that  the  regulation  of  billboards  and  their  restric- 
tion is  not  so  much  a  regulation  of  private  property  as  it  is  a  regulation 
of  the  use  of  the  streets  and  other  public  thoroughfares.  .  .  . 

"It  may  be  that  the  courts  in  the  United  States  have  committed  them- 
selves to  a  course  of  decisions  with  respect  to  billboard  advertising,  the 
full  consequences  of  which  were  not  perceived  for  the  reason  that  the 
development  of  the  business  has  been  so  recent  that  the  objectionable 
features  of  it  did  not  present  themselves  to  the  courts  nor  to  the  people. 
We  in  this  country  have  the  benefit  of  the  experience  of  the  people  of  the 
United  States  arid  may  make  our  legislation  preventive  rather  than  cor- 
rective." 

In  comment  on  the  second  quotation  from  the  case  the  editors  of 
the  Law  Journal  say : 

''It  seems  highly  probable  that  the  authority  reasonably  to  regulate 
public  aesthetics  would  now  be  recognized  by  the  Supreme  Court  of  the 
United  States  as  not  impugning  the  Fourteenth  Amendment." 

It  should  be  especially  noted  in  connection  with  the  Rafferty  Case 
that  the  Organic  Act  of  the  Philippines  (39  U.  S.  Stats,  at  Large,  545 
ch.  416  (Public  No.  240),  sec.  3,  approved  Aug.  29,  1916;  repealing  and 
superseding  the  similar  provision,  32  Stat.  691,  ch.  1369,  Publ.  No.  235, 
sec.  5,  approved  July  i,  1902.  These  acts,  and  others,  will  be  found  in  a 
compilation,  issued  by  the  Government  Printing  Office  in  1920,  entitled 
"Acts  of  Congress  and  Treaties  Pertaining  to  the  Philippine  Islands  in 
Force  July  i,  1919)  incorporates  the  provisions  of  the  Fourteenth  Amend- 
ment of  the  United  States  Constitution,  that  no  person  shall  be  deprived 
of  property  without  due  process  of  law,  which  is  one  of  the  provisions 
upon  which  the  courts  base  their  decisions  that  aesthetic  regulation  of 
billboards  is  unconstitutional. 

"  Welch  v.  Swasey,   193  Mass.  364  at  375. 

10  A  Maryland  statute  (1904,  ch.  42)  provided  that  no  building  to  ex- 
ceed seventy  feet  in  height  should  be  erected  in  a  designated  portion  of 
the  city  of  Baltimore,  in  the  center  of  which  stands  the  Washington 
Monument.  The  statute  was  attacked  as  a  taking  of  private  property 


394 

There  is  little  doubt  that  if  a  state,  by  amending  its  con- 
stitution, expresses  its  belief  and  purpose  that  the  police  power 
shall  be  used  conservatively  for  given  aesthetic  purposes,  the 

without  compensation  for  a  purely  aesthetic  purpose  and  therefore  for 
a  private  use,  which  was  unconstitutional.  The  Court,  in  sustaining  this 
contention,  says : 

"Such  is  undoubtedly  the  weight  of  authority,  though  it  may  be  that 
in  the  development  of  a  higher  civilization,  the  culture  and  refinement 
of  the  people  has  reached  the  point  where  the  educational  value  of  the 
Fine  Arts,  as  expressed  and  embodied  in  architectural  symmetry  and 
harmony,  is  so  well  recognized  as  to  give  sanction,  under  some  circum- 
stances, to  the  exercise  of  this  (police]  power  even  for  such  pur- 
poses. .  .  ." 

The  statute  was  upheld,  however,  on  the  ground  that  the  object  of 
the  act  is  not  merely  to  preserve  the  architectural  beauty  of  the  locality 
but  also  to  avoid  the  increased  danger  from  fire  which  arises  from  tall 
buildings  in  the  event  of  a  general  conflagration.  Cochran  v.  Preston, 
108  Md.  220  (1908). 

"It  is  generally  assumed  that  the  prohibition  of  unsightly  advertise- 
ments (provided  they  are  not  indecent)  is  entirely  beyond  the  police 
power,  and  an  unconstitutional  interference  with  the  rights  of  property. 
Probably,  however,  this  is  not  true.  It  is  conceded  that  the  police  power 
is  adequate  to  restrain  offensive  noises  and  odors.  A  similar  protection 
to  the  eye,  it  is  conceived,  would  not  establish  a  new  principle,  but  carry 
a  recognized  principle  to  further  application.  It  is  true  that  ugliness  is 
not  as  offensive  as  noise  or  stench.  But  on  the  other  hand  offensive 
manufactures  are  useful  and  the  offense  unintentional  and  inevitable, 
whereas  in  the  case  of  an  advertisement  the  owner  claims  the  right  to 
obtrude  upon  the  public  an  offensive  sight  which  they  do  not  want,  and 
which  but  for  this  undesired  obtrusion,  would  not  be  of  the  slightest 
value  to  him."  Freund,  Police  Power,  p.  165. 

In  sustaining  a  St.  Louis  billboard  ordinance,  providing  that : — 
(a)  No  billboard  shall  exceed  fourteen  feet  in  height. 
(&)  Billboards  shall  have  open  spaces  of  four  feet  from  the  lower 

edge  to  the  ground. 

(f)  Billboards  shall  not  be  nearer  than  six  feet  to  a  building  or 
the  side  line  of  any  lot  or  nearer  than  two  feet  to  any  other 
billboard, 
(rf)  Nor  over  five  hundred  square  feet  in  area  or  closer  to  the 

street  line  than  fifteen  feet, 
a  Missouri  Court  says : 

"This  is  a  legitimate  and  honorable  business,  if  honorably  and  1- 
mately  conducted,  but  every  other  feature  and  incident  thereto  have  evil 
tendencies,  and  should  for  that  reason  be  strictly  regulated  and  controlled. 
The  signboards  and  billboards  upon  which  this  class  of  advertisements 
are  displayed  are  constant  menaces  to  the  public  safety,  and  welfare  of 
the  city;  they  endanger  the  public  health,  promote  immorality,  constitute 
hiding  places  and  retreats  for  criminals  and  all  classes  of  miscreants. 
They  are  also  inartistic  and  unsightly. 

"In  cases  of  fire  they  often  cause  their  spread  and  constitute  barriers 
against  their  extinction;  and  in  cases  of  high  wind,  their  temporary  char- 
acter, frail  structure  and  broad  surface,  render  them  liable  to  be  Mown 
down  and  to  fall  upon  and  injure  those  who  may  happen  to  be  in  tln-ir 
vicinity.  The  evidence  shows  and  common  observation  teaches  us  that 
the  ground  in  the  rear  thereof  is  being  constantly  used  as  privjps  and 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          395 

Supreme  Court  of  the  United  States  will  not  declare  the  state 
action  invalid.21  Many  such  amendments  have  from  time  to 
time  been  offered  in  the  various  states,  but  as  yet  Massachusetts 
is  the  only  state  in  which  any  such  amendment  has  been 
adopted.22 

dumping  ground  for  all  kinds  of  waste  and  deleterious  matters,  and  there- 
by creating  public  nuisances  and  jeopardizing  public  health;  the  evidence 
also  shows  that  behind  these  obstructions  the  lowest  form  of  prostitution 
and  other  acts  of  immorality  are  frequently  carried  on,  almost  under 
public  gaze;  they  offer  shelter  and  concealment  for  the  criminal  while 
lying  in  wait  for  his  victim ;  and  last,  but  not  least,  they  obstruct  the 
light,  sunshine  and  air,  which  are  so  conducive  to  health  and  comfort.  .  .  . 

"The  amount  of  good  contained  in  this  class  of  business  is  so  small 
in  comparison  to  the  great  and  numerous  evils  incident  thereto  that  it 
has  caused  me  to  wonder  why  some  of  the  courts  of  the  country  have 
seen  fit  to  go  as  far  as  they  have  in  holding  statutes  and  ordinances  of 
this  class  void,  which  were  only  designed  for  the  suppression  of  the  evils 
incident  thereto  and  not  to  the  suppression  of  the  business  itself.  .  .  . 
My  individual  opinion  is  that  this  class  of  advertising  as  now  conducted 
is  not  only  subject  to  control  and  regulation  by  the  police  power  of  the 
state,  but  that  it  might  be  entirely  suppressed  by  statute,  and  that,  too, 
without  offending  against  either  the  State  or  Federal  Constitution."  St. 
Louis  Gunning  Adv.  Co.  v.  St.  Louis,  235  Mp.  99  (1911). 

"The  views  in  and  about  a  city,  if  beautiful  and  unobstructed,  con- 
stitute one  of  its  chief  attractions,  and  in  a  way  add  to  the  comfort  and 
well-being  of  its  people.  Billboards  for  advertising  purposes,  erected  to 
any  great  height,  would  undoubtedly  be  subject  to  all  of  these,  as  well 
as  other,  objections,  and  such  structures  are,  therefore,  plainly  within  the 
regulating  power  of  the  governing  of  a  city."  Matter  of  Wilshire,  103 
Fed.  Rep.  620  (1900).  See  also  20  Harvard  Law  Review,  35.  An  im- 
portant case,  recently  decided,  of  general  interest  on  this  subject,  is  St. 
Louis  Poster  Adv.  Co.  v.  St.  Louis,  249  U.  S.  269  (1919). 

11  See   p.   22. 

12  Amendment  to  Constitution  of   Massachusetts  adopted  November  5, 
1918:    "Art.  L.  Advertising  on  public  ways,  in  public  places  and  on  pri- 
vate property  within  public  view  may  be  regulated  and  restricted  by  law." 
Under  this  amendment  a  statute    (Gen.  Laws   1920,  ch.  93,   sees.  29-33) 
has   been  enacted  empowering  the   division  of   highways   of   the   depart- 
ment of   public  works  of  the  state  to  pass  rules  and   regulations  with 
regard  to  such   advertising;   and  such   regulations  were  issued,   Dec.  20, 
1920.    These  rules  still  leave  the  owner  of  land  abutting  on  a  highway 
free,  in  most  cases,  to  display  outdoor  advertising  in  full  view  of  it ;  but 
no   such   advertising  is   allowed   "within  the  bounds   of  any  highway" — 
a  prohibition  that  may  be  made  in  any  state,  and  is  made  in  many  of 
them — "nor  on  any  location  within  300  feet  of  any  park,  parkway,  play- 
ground,   state    reservation,   or   public   building,"   nor    "upon   any   rock  or 
tree  nor  upon  any  fence  or  pole  bordering  any  public  highway."     The 
regulations   further   provide   that   "no  permits    shall   be   granted    for   the 
location  or  maintenance  of  signs  near  certain  highways  in  territory  which, 
in  the  opinion  of  the  division,  is  of  unusual  scenic  beauty.     Such  places 
will  be  designated  by  the  division  from  time  to  time."     The  right  is  re- 
served to  pass  upon  the  subject  matter  displayed  and  to  approve  of  the 
size,  shape  and  material  of  signs. 

An  amendment  covering  the  field  more  completely,  prepared  by  the 


396  THE  LAV,'  OF  CITY  PLANNING  AND  ZONING 

Promotion  of  Beauty  Without  Compensation  in 
Europe. — In  Europe  regulations  imposed  by  the  state  with- 
out compensation  and  thus  analogous  to  our  police  power,  are 
used,  independently  or  in  conjunction  with  eminent  domain  and 
compensation,  to  preserve  and  promote  beauty,  and  prevent  the 
defacement  of  private  property  exposed  to  public  view.  These 
regulations  may  for  convenience  be  classified  under  two  heads : 
— the  more  general  provisions  for  these  purposes  and  the  pro- 
visions formulated  to  cope  with  the  abuses  of  out-door  adver- 
tising.28 

Classification  in  France. — Probably  no  country  in  Europe 
has  been  more  active  and  intelligent  in  its  efforts  to  protect  its 
art  treasures  and  natural  beauties  than  France.24  Legislation 

author  for  presentation  to  the  Moot  Constitutional  Convention  of  the 
National  Municipal  League,  held  at  Cleveland,  Ohio,  December  29,  1919, 
and  unanimously  adopted,  reads  as  follows : 

"The  preservation  of  places  and  things  of  historic  significance  or  of 
beauty  difficult  or  impossible  of  replacement  or  duplication,  and  the  pro- 
motion of  the  beauty  of  the  view  of  or  from  public  places  or  structures 
being  in  the  public  interest,  reasonable  regulations  with  respect  to  private 
property  may  be  enacted  to  these  ends." 

A. shorter  amendment  was  proposed  by  Albert  S.  Bard,  Esq.,  of  New 
York  City,  reading  as  follows : 

"Reasonable  regulations  may  be  enacted  with  respect  to  the  appear- 
ance of  private  property  visible  from  any  public  place." 

"  With  relation  to  aesthetic  legislation  in  Europe  generally  see :  French 
Law — La  Beaute  de  Paris  et  La  Loi  by  Charles  Lortsch,  Librairie  Recueil 
Sirey,  22  rue  Soufflot,  Paris,  1913;  La  Beaute  de  Paris  by  Charles  Magny, 
Librairie  Bernard  Tignol,  53  bis  quai  des  Grand  Augustins,  Paris,  1911; 
Comment  Reconstruire  nos  Cites  Detruites,  by  Agache,  Aubartin  and 
Redont,  Librairie  Armand  Colin,  Paris,  2d  ed.  1916.  German  Law:  lias 
Kgl.  Sachs,  Gesets  gcgen  Verunstaltung  vom  10  Mars  1909,  Rossberg'sche 
Verlagsbuchhandlung,  Leipzig,  1909,  which  contains  a  preface  with  an 
excellent  history  of  the  entire  European  movement,  and  the  laws  on  the 
subject  not  only  of  Saxony  but  of  several  of  the  other  German  states. 

"But  not  more  so  than  in  Italy.  The  regulation  and  prohibition  of 
the  export  of  certain  classes  of  works  of  art  began  in  Rome  in  the  fifteenth 
century  under  Popes  Paul  II  and  Sixtus  IV.  Noteworthy  are  the  Lex 
Doria  Pamphili  of  1802  and  the  Lex  Pacca  of  1821,  which  remained  in 
force  until  1902.  Similar  statutes  are  to  be  found  in  a  number  of  other 
Italian  cities  in  the  nineteenth  century.  Protection  of  movable  works 
of  art  and  articles  of  historic  interest  led  to  the  protection  of  buildings 
and  places  of  like  character.  The  statutes  at  present  in  force  throunh-nit 
Italy  are  the  law  of  June  20,  1909,  n.  364,  as  amended  by  the  law  of  Juno 
23,  1912,  n.  688.  More  or  less  similar  laws,  since  amended,  have  l«-en 
passed  in  Sweden  (1867),  various  cantons  of  Switzerland,  Denmark 
(1869),  Roumania  and  Portugal  (1892).  Japan  has  recently  passed  a 
law  for  the  preservation  of  the  beauty  of  landscapes  and  of  historical 
and  natural  monuments  (Law  No.  44  of  1919;  see  also-  decrees  Nos.  261, 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          397 

for  this  purpose  began  there  in  1830.  In  1887,  to  accomplish 
this  purpose,  she  adopted  a  system  which  is  generally  referred 
to  as  "Classification."  By  this  system  she  protects  both  public 
works  of  art — a  matter  of  no  special  legal  difficulty — and 
privately  owned  objects  and  places  of  beauty.  On  December 
31,  1913,  she  codified  most  of  her  legislation  on  this  subject,  in 
a  law  somewhat  inaccurately  entitled  the  "Law  with  regard  to 
Historic  Monuments"  25  which  may  be  summarized  as  follows : 

Real  properties  belonging  to  the  state,  a  department,  a 
commune,  a  public  establishment  or  a  private  individual,  the 
conservation  of  which,  from  the  point  of  view  of  history  or 
art,  is  for  the  public  interest,  may  be  classified  as  historic  monu- 
ments. The  classification  is  made  by  the  Minister  of  Fine  Arts 
subject  to  an  appeal  to  the  Council  of  State.  Upon  notification 
to  the  owner  of  the  intention  of  the  Administration  of  Fine 
Arts  to  ask  for  classification,  all  the  requirements  of  classifi- 
cation apply.  They  cease  to  apply  if  the  decision  to  classify  is 
not  made  within  six  months  of  this  notice.  If  the  property  is 
private,  and  the  owner  does  not  consent,  the  classification  in 
some  cases  gives  rise  to  a  claim  of  indemnity  proportionate  to 
the  injury  caused  by  such  a  classification. 

Classified  public  property  cannot  be  sold  until  the  Minister 
of  Fine  Arts  has  been  notified  and  been  allowed  fifteen  days 
within  which  to  give  his  opinion  on  the  subject;  in  default  of 
this  notice  the  Minister  may  within  five  years  nullify  any  such 
conveyance. 

No  classified  property  shall  be  destroyed,  removed  in  whole 
or  in  part,  restored,  repaired  or  in  any  way  changed  or  added 
to  without  the  consent  of  the  Minister  of  Fine  Arts.  He  may 
always  repair  or  maintain  private  classified  property  when 
necessary  for  its  conservation. 

No  person  can  acquire  any  right  by  prescription  in  a  classi- 
fied property  or  easement  in  it  which  may  cause  it  injury,  or  any 

281  of  1919)  a  translation  of  which  will  be  found  in  the  report  for  1920 
of  the  American  Scenic  and  Historic  Preservation  Society,  to  the  Legis- 
lature of  the  State  of  New  York,  p.  422  ff.  In  this  connection  the  re- 
ports of  the  Society  contain  much  valuable  information.  The  law  of 
England  and  of  the  German  states  is  given  below. 

"  Passed  Dec.  31,  1913.     A  translation  of  the  law  practically  in  full  is 
given  on  p.  423,  ff.  of  this  work. 


398  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

easement  2e  whatever  except  with  the  consent  of  the  Minister 
of  Fine  Arts. 

The  effects  of  classification  run  with  the  land  and  bind  all 
those  subsequently  acquiring  any  interest  in  it.  Whoever  con- 
veys a  classified  property  shall  notify  the  purchaser  of  the 
classification  and  shall,  within  fifteen  days  of  such  conveyance, 
notify  the  Minister  of  Fine  Arts. 

A  list  of  classified  properties  and  orders  and  decrees  of 
classification  shall  be  recorded  in  the  Bureau  of  Mortgages  of 
the  locality  where  the  property  is  situated.  There  shall  also 
be  drawn  up  a  list  of  properties  which,  while  not  justifying  a 
special  demand  for  immediate  classification,  should  nevertheless 
be  preserved.  The  owners  of  properties  entered  on  the  list  shall 
be  notified  and  shall  not  make  any  alteration  of  such  property 
until  after  five  days  previous  notice  to  the  prefect. 

The  Minister  of  Fine  Arts,  on  behalf  of  the  state  and  the 
departments  and  communes,  after  the  Minister  has  had  an 
opportunity  to  be  heard,  may  expropriate  property  classified  or 
proposed  for  classification.  No  new  structure  shall  be  classified 
without  the  authority  of  the  Minister  of  Fine  Arts. 

Property  may  be  wholly  or  partly  declassified  by  a  decree  of 
the  Council  of  State  on  petition  of  the  Minister  of  Fine  Arts 
or  the  proprietor. 

Movable  objects,  including  fixtures,  the  conservation  of 
which  from  the  point  of  view  of  history  or  art  is  in  the  public 
interest,  may  also  be  classified  by  direction  of  the  Minister  of 
Fine  Arts,  much  like  real  property.  Private  property  of  this 
sort  can  be  classified  only  with  the  consent  of  the  owner  or  by 
a  special  law.  The  exportation  of  classified  objects  from 
France  is  prohibited.  The  Administration  of  Fine  Arts  may 
order  the  provisional  transfer  of  a  classified  movable  for  safety, 
but  within  three  months  measures  must  be  taken  for  its  per- 
manent security.  The  owner  may  obtain  its  return  on  satis- 
fying the  authorities  that  the  article  will  be  safe.27 

"  Known  as  "Servitude"  in  Roman  law  countries. 

"Hesse  (Law  for  the  Protection  of  Monuments,  etc.,  of  July  16.  1902, 
to  be  found  also  in  the  book  on  the  Saxon  law,  referred  to  on  p.  396)  and 
Wiirttemberg  (Building  Ordinance  of  July  28,  1910,  Tiibinscn,  1912, 
art.  97)  have  adopted  the  system  of  classification  in  the  protection  of 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          399 

Like  "historic  monuments,"  places  of  natural  beauty  are  also 
classified  in  France,  and  with  much  the  same  effect  in  law.28 

Protection  of  Ancient  Monuments  and  Places  of 
Beauty  in  England. — The  English  act  which  provides  for  the 
preservation  of  objects  of  beauty  is  much  like  the  French  law 
passed  to  effectuate  the  same  purpose,  and  is  of  especial  interest 
to  us  because  of  the  similarity  of  our  legal  systems.  The 
English  statute  is  entitled  "Ancient  Monuments  Consolidation 
and  Amendment  Act,  1913."  29 

The  original  act  was  passed  in  i882.30  It  extended  only 
to  prehistoric  remains  and  merely  authorized  the  Commis~ 
sioners  of  Works  to  purchase  such  monuments,  receive  them  as 
gifts,  or  accept  the  guardianship  of  them  if  offered  by  the 
owner  for  this  purpose.  As  a  part  of  the  monument  were  in- 
cluded its  site  and  access  to  it.  Monuments  in  the  custody  of 
the  Commissioners  might  be  maintained  by  them.  Any  person, 
including  the  owner  if  he  had  relinquished  its  custody,  who 
injured  or  defaced  an  ancient  monument,  was  guilty  of  a 
crime. 

In  1900  the  act  was  amended  31  to  include  in  its  protection 
any  monument  or  structure  of  historic,  traditional,  artistic  or 
architectural  public  interest;  but  remained  permissive. 

The  act  of  1913  adds  compulsory  provisions.  Under  the 
present  act,  if  the  preservation  of  the  monument  is  of  national 
importance  and  it  is  in  danger  of  destruction,  or  removal,  or 
damage  from  neglect,  or  injudicious  treatment,  a  "preserva- 
tion order"  may  be  issued,  placing  it  under  the  protection  of  the 
commissioners.  Such  an  order,  unless  confirmed  by  Parlia- 
ment, expires  in  eighteen  months,  and  no  such  order  shall 
thereafter  be  issued  for  five  years. 

private  property  of  general  historical  and  artistic  interest.  The  statute 
of  Hesse  follows  the  French  statute  closely  and  the  W'urttemberg  pro- 
visions conform  to  it  in  general  principle,  using  building  regulation,  in 
part,  for  the  purpose. 

8  "Law  for  the  Protection  of  Places  of  Beauty,"  of  April  21,  1906,  a 
translation  of  which  is  given  practically  in  full  on  p.  422  of  this  work. 

"3  and  4  Geo.  V,  ch.  32.  The  statute  is  given  practically  in  full  on 
p.  432  of  this  work. 

*°45  and  46  Viet.  ch.  73. 

"63  and  64  Viet.  ch.  34. 


400  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  commissioners  shall  from  time  to  time  make  and  pub- 
lish a  list  of  monuments  the  preservation  of  which  is  of  national 
importance.  Any  owner  who  proposes  to  demolish,  remove, 
structurally  alter  or  make  additions  to  any  such  monument  shall 
first  notify  the  commissioners  and  shall  not,  except  in  case  of 
urgent  necessity,  commence  any  such  work  for  one  month 
thereafter,  on  penalty  of  fine  and  imprisonment.32 

Building  Regulation  in  Germany  in  the  Promotion  of 
Beauty. — It  is  by  rules  forming  a  part  of  the  system  of  build- 
ing regulation  characteristic  of  Germany,  Switzerland  and  Aus- 
tria, that  these  countries  for  the  most  part  seek  to  promote  and 
preserve  the  beauty  of  private  property  exposed  to  public  view. 
The  system  prevailing  in  Germany  will  be  here  described  as 
typical  of  that  in  all  three  countries.83  Before  this  can  be  done, 
however,  it  will  be  necessary  to  consider  briefly  the  law  in  Ger- 
many with  regard  to  aesthetics  generally.34 

The  German  states  have  for  many  years  authorized  the 
issuance  of  police  ordinances  for  aesthetic  considerations. 
Thus  the  Prussian  law,  as  early  as  1794,  empowered  the  police 
to  make  ordinances  for  the  purpose  of  preventing  the  disfigure- 
ment of  public  places  35  but,  under  the  decisions,  only  a  gross 
disfigurement  could  be  so  dealt  with;  and  this  in  most  of  the 
states  remained  the  law  until  about  the  year  1907.  Certain 
cities,  among  which  may  be  noted  Frankfort  36  and  Hildes- 
heim  37  passed  local  statutes  or  ordinances  before  1907  requir- 

™  Sees.  18  and  19  of  the  act,  given  in  full  on  pp.  43,  99  of  this  work,  are 
most  interesting.  They  relate  to  phases  of  the  subject  that  will  he  taken 
up  later,  but  for  a  complete  idea  of  the  statute,  should  be  read  in  this 
connection. 

"The  law  of  the  city  of  Lausanne  of  January  15,  1915,  should  be 
noted  in  this  connection. 

**  For  the  system  used  in  Hesse  and  Wurttemberg,  see  p.  308,  note  27. 
Most  if  not  all  the  German  states  have  classified  their  public  art  treasures 
and  systematically  inspect  and  protect  them.  See  Balz,  Batipolizcir,-*  ht, 
4th  ed.  Carl  Heymann  s  VerlaR.  Berlin,  1910,  p.  96,  for  Prussia;  and  the 
annotated  editions  of  their  building  laws  for  the  law  and  its  administra- 
tion in  other  states.  Private  property  of  beauty  or  general  interest  may 
be  expropriated.  Wiirttemberg  Building  Ordinance  of  July  28,  1910,  art. 
97  cited  on  p.  398  above;  Hesse,  Law  of  July  16,  1902,  also  referred  to  on 
p.  398  above. 

"A.  L.  R.  (Allgemeines  Landrecht  or  Code  of  Prussia,  the  work 
of  Frederick  the  Great),  I,  8,  sec.  66,  71. 

""Ordinance  to  Maintain  the  Ancient  Character  of  Parts  of  Ccrtaiw 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          401 

ing  new  structures  in  the  older  sections  of  the  city  to  conform 
to  the  ancient  styles  of  architecture;  but  the  validity  of  these 
statutes  was  considered  at  least  doubtful. 

About  the  year  1907  the  German  states  began  to  pass  leg- 
islation giving  the  authorities  increased  power  to  promote  pub- 
lic beauty  and  prevent  public  disfigurement,  and  at  present  there 
are  general  statutes,  or  amendments  to  the  general  building 
laws  or  ordinances  to  this  effect  in  most  of  these  states,  and 
ordinances  or  local  statutes  taking  advantage  of  these  powers 
in  many  of  their  cities. 

Establishment  of  Street  and  Building  Lines  Partly  for 
Esthetic  Reasons. — The  German  requirements  for  the  pro- 
motion or  preservation  of  the  beauty  of  private  property  ex- 
posed to  public  view  are  made  either  as  requisites  to  be  observed 
by  the  public  authorities  in  the  establishment  of  street  and 
building  lines,  etc.,  or  as  conditions  to  be  fulfilled  by  the  prop- 
erty owner  before  he  can  obtain  a  building  permit.38 

In  Germany  the  lines  of  future  streets  are  fixed  by  plans 
made  long  before  the  land  for  the  streets  is  acquired.  These 
plans  bind  private  property  and  are  established  under  the  police 
power  without  compensation.39  For  many  years  the  building 
police  have  been  empowered  and  directed  to  pay  due  regard 
to  considerations  of  aesthetics  in  fixing  these  lines.  The  weight 
which  might  be  given  to  aesthetic  considerations  under  the 
earlier  statutes  and  the  decisions  interpreting  them  was  much 
less  than  under  the  more  recent  laws.  Thus  the  Prussian  City 
Planning  or  Building  Line  Statute  of  1875  provides  that: 

"SEC.  3.  In  establishing  street  and  building  lines,  due  regard 
shall  be  paid  to  the  requirements  of  traffic,  safety  from  fire,  and 
public  health,  and  care  shall  be  taken  that  there  shall  not  be  any 
disfigurement  of  the  streets :"  *  to  which  the  Housing  Law  of  1918 
has  added,  "nor  of  the  general  view  of  the  town."  4 

Streets  in  the  Old  City,"  passed  Feb.  27,  1000,  and  repealed  and  super- 
seded by  the  local  statute  against  defacement,  passed  Nov.  3,  1911,  by 
virtue  of  the  Prussian  Act  of  1907. 

37  Passed  June   17,    1899. 

38  As  to  Hesse  and  Wtirttemberg,  see  ante,  p.  398. 

39  See  p.  454  below. 

40  For  a  translation  of  the  entire  law,  see  p.  466. 

41  See  p.  473. 


402          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  cases  in  interpretation  of  this  aesthetic  provision  point  out 
the  fact  that  it  is  based  upon  the  General  Land  Law,42  and 
that,  therefore,  "disfigurement"  means  "the  production  of  a 
condition  that  is  positively  ugly,  and  offends  the  eye  of  every 
impartial  observer."  Under  Art.  II  of  the  Wiirttemberg  law, 
of  July  28,  1910,  however: 

"In  the  establishment  of  new  and  the  change  of  existing  city 
plans  and  building  lines  .  .  .  care  shall  be  taken  to  preserve  build- 
ings of  artistic  and  historic  value,  objects  of  natural  beauty  ...  at- 
tractive street  and  landscape  views;  and  that  in  the  construction  of 
newly  planned  streets  and  squares,  new  views  of  like  nature  shall 
be  created." 

In  practice  cities  in  other  countries  fix  their  street  lines 
in  part  for  aesthetic  reasons ; 43  but  in  this  connection  as  in 
others  Germany  has  worked  out  her  legal  system  more  defi- 
nitely and  explicitly  than  has  been  done  elsewhere. 

Issuance  of  Building  Permit  Subject  to  Fulfillment  of 
Esthetic  Requirements. — In  all  civilized  countries  a  per- 
mit is  required  for  the  erection,  alteration  or  repair  of  any 
structure  and  for  the  construction  of  any  addition  to  it;  and 
such  work  must  fulfill  certain  requirements  or  the  permit  will 
not  issue.  In  all  these  countries  these  requirements  include 
provisions  with  regard  to  stability,  hygiene,  etc. ;  in  Germany 
there  are  also  aesthetic  requirements.  These  aesthetic  pre- 
requisites to  the  issuance  of  the  permit  may  for  convenience  be 

*A.  L.  R.,  i,  8,  sees.  66,  71. 

**Thus  the  Paris  building  and  street  line  statute  with  its  invariable 
height  limit  for  the  building  proper  and  limiting  angle  for  the  roof,  is 
framed  to  produce,  so  far  as  possible,  the  uniform  sky  line  so  dear  to 
Parisians  (see  Les  Rtglemcnts  de  Vo\nc,  by  Louis  Bonnier.  Charles 
Schmid,  Editor,  51  Rue  des  ficoles,  Paris,  1903)  ;  while  the  New  York 
City  zoning  resolution  allows  towers  to  any  height  on  a  given  portion 
of  the  lot,  and,  limiting  height,  generally  at  the  street  line,  permits  greater 
height  with  setbacks  (see  p.  270),  to  preserve  the  irregular  sky  line,  so 
characteristic  of  the  city;  thus  producing  many  buildings,  new  in  type, 
of  great  beauty.  The  primary  purpose  of  the  rules  in  both  cities  is  to 
preserve  the  supply  of  light  and  air  and  lessen  congestion. 

Everywhere,  also,  building  regulation  allows  the  projection  beyond 
the  line  fixed  for  buildings,  of  ornamental  features,  to  encourage  builders 
to  include  them  in  their  plans. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          403 

roughly  divided  into  those  of  the  period  before  the  legislation 
of  1907  already  referred  to  and  those  of  that  period.44 

Esthetic  Legislation  of  1907  and  Thereafter. — In  the 
building  laws  and  ordinances  of  the  various  states,  as 
this  legislation  existed  prior  to  1907,  there  were  provisions, 
differing  in  the  different  states,  making  certain  specific  require- 
ments with  regard  to  the  appearance  of  private  property  to  be 
exposed  to  public  view,  enforced  by  refusal  to  issue  permits  if 
they  were  not  complied  with;  such  as,  for  instance,  that  the 
walls  of  buildings  visible  from  the  street  should  be  finished  like 
facades,  and  not  left  rough 45  or  painted  in  harsh  colors.48 
These  provisions  were  limited  to  the  prevention  of  what  was 
considered  gross  disfigurement  of  the  public  streets ;  for  beyond 
this  the  law  did  not  permit  the  building  police  to  go. 

The  aim  of  the  legislation  of  1907  and  thereafter  was  to 
authorize  the  making  of  stricter  regulations  to  promote  public 
beauty.  More  specifically  the  purpose  of  these  laws  was  to 
permit  (i)  the  prevention  of  disfigurement  of  public  places 
even  if  it  could  not  be  said  in  law  to  be  gross,47  provided  an 
unreasonable  burden  was  not  thereby  imposed  upon  property 
owners;  (2)  the  making,  subject  to  the  same  proviso,  of  special 
requirements  with  regard  to  the  appearance  of  buildings  in 
special  localities;  (3)  the  more  drastic  suppression  of  the  evils 
of  outdoor  advertising — a  subject  to  be  considered  later. 

To  accomplish  all  three  of  these  purposes  some  states  have 
passed  general  laws,  while  other  states  have  amended  their 
general  building  laws  or  ordinances ;  and  in  substance,  also,  the 

44  It  should  be  noted,  however,  that  in  some  states  there  was  more 
progress  in  this  direction  before  1907  than  in  others ;  and  that  at  present 
aesthetic  legislation  still  lags  in  some  jurisdictions. 

45  E.  g.,  Frankfort,  ordinance  of  June  4,  1912,  sec.  8,  par.  5,  given  in 
translation  on  p.  229  of  this  work :  to  be  found  in  the  same  form  in  earlier 
ordinances,  as  for  instance  that  of  July  15,  1884,  sec.  9;  Munich,  Staffel- 
bauordnung  of  April  20,  1904,  sec.  10,  parts  I,  X;  Munich  Building  Ordi- 
nance of  July  29,   1895,  as  amended  March  21,   1900,  and  Aug.  3,  1910, 
sec.  67. 

**  Fagades  shall  not  be  painted  in  harsh  colors ;  Bavarian  Building 
Ordinance  of  Feb.  17,  1901,  sec.  53,  par.  II,  Building  Ordinance  of  Anhalt 
of  June  19,  1905,  sec.  64,  par.  2. 

47  The  Prussian  Statute  of  1907,  however,  still  requires  "gross"  dis- 
figurement before  it  grants  redress. 


404 

provisions  vary  in  the  various  states.  The  general  statute  of 
the  Kingdom  of  Saxony,  passed  March  10,  loxx),48  is  fairly 
typical  of  all  this  legislation.49  The  provisions  of  that  statute 
to  prevent  disfigurement  of  public  places  generally  and  to  allow 
special  requirements  to  be  made  in  certain  localities — the  por- 
tions of  the  statute  now  to  be  considered — are  as  follows : 

"SEC.  2.  The  building  police  permit  for  the  construction  and 
alteration  of  buildings  may  be  refused  when  thereby  a  building,  or 
its  surroundings,  or  a  street,  a  built  up  locality  or  a  country  land- 
scape would  be  disfigured;  provided  that  a  disproportional  economic 
injury  or  expense  shall  not  thereby  be  caused  the  owner.  .  .  ." 

"SEC.  3.  Local  statutes  may  provide  that  for  given  streets  or 
squares  of  historical  or  artistic  importance  the  building  police  permit 
for  the  construction  or  alteration  of  buildings  shall  be  refused  if  the 
character  or  appearance  of  the  locality  or  street  would  be  impaired 
thereby." 

"SEC.  4.  Local  statutes  may  provide  that  the  building  police  per- 
mit for  structural  alterations  of  single  buildings  of  historical  or 
artistic  importance  or  for  the  construction  or  structural  alteration 
of  buildings  in  the  neighborhood  of  such  structures  may  be  refused 
when  their  characteristic  appearance  or  the  effect  that  they  produce, 
would  thereby  be  impaired." 

"SEC.  9.  If  by  the  enforcement  of  the  provisions  of  sees.  3  or  4 
...  a  disproportionate  economic  injury  or  expense  would  be  caused, 
the  building  police  may,  after  hearing  the  representatives  of  the  mu- 
nicipality or  the  lord  of  the  manor,  waive  the  provisions  in  question 
when  the  structure  as  planned  would  conform  to  the  character  of 
the  building  and  its  surroundings." 

The  German  law  of  the  period  of  1907  and  thereafter  for 
the  preservation  under  the  police  power,  without  compensation, 
of  the  beauty  of  private  property  exposed  to  public  view,  of 
which  the  clauses  of  the  statute  just  quoted  give  us  a  fair  idea, 

*Gesetz-   und   Verordnungs-blatt,    1909,   Nr.   25. 

"As  examples  of  general  laws,  see,  in  addition  to  the  Saxon  statute, 
referred   to   in  the  text,  the   Prussian   statute   of  July    15,    1907    (< 
Sammlung,  or  Collection  of  Laws  for  that  year,  p.  260)  ;  and  as  examples 
of  clauses  in  building  laws,  etc.,  see  Baden,  Building  Ordinance  of  S<  pt 
I,  1907,  sec  33  (and  long  note  to  same  in  the  edition  of  Roth,  Karlsruhe, 
1009);    Bavaria,    Polizeistrafgesetzbuch,   art.    101,   par.    in,   as   am 
July  6,  ioo8j  and  sec.  53,  par.  IV,  of  the  Building  Ordinance,  passed  under 
it,  the  provision  having  been  in  force  in  cities  of  over  20,000  inlia!  : 
since  1000;  \\iirttt  mherg,  Building  Ordinance  of  July  28,  1910,  art.  97  and 
especially  art.  98,  par.  2. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY  405 

has  for  its  aim  three  very  different  objects: — (i)  to  preserve 
structures  of  historic  or  artistic  importance,  (2)  to  prevent 
public  disfigurement  in  general,  (3)  to  require  structures  and 
structural  alterations  in  localities  of  special  beauty  or  interest 
to  conform  to  special  standards. 

The  provision  for  the  preservation  of  private  structures  of 
historic  or  artistic  importance  is  admittedly  incomplete.  The 
police  have  no  right  in  any  case  to  prevent  the  owner  from 
destroying  his  building,50  or  to  forbid  him  to  alter  it  if  this 
refusal  imposes  upon  him  a  disproportionate  economic  injury 
or  expense.  For  the  preservation  of  such  structures  the  police 
power  alone  is  in  its  very  nature  inadequate  and  the  power  of 
eminent  domain  must  also  be  employed;  as,  for  instance,  is 
done  in  France  and  other  countries  under  the  system  of  classi- 
fication. Eminent  domain  is  in  fact  resorted  to  in  Germany 
for  this  purpose,  the  building  police  notifying  the  authorities 
of  the  imminent  destruction  of  a  historic  or  artistic  monument 
and  meanwhile  withholding  the  permit,  in  order  that  time  may 
be  given  to  condemn  the  monument  if  it  seems  wise  to  do  so. 

Preservation  of  Character  of  Special  Localities. — The 
provision  authorizing  the  making  of  special  requirements  for 
structures  and  structural  changes  in  special  localities,  like  the 
provisions  for  the  protection  of  the  appearance  of  the  city 
generally,  is  regarded  in  Germany  as  a  provision  permitting 
the  prohibition  of  public  disfigurement ;  for  the  special  locality 
is  injured  by  a  structure  below  its  special  standards  just  as  the 
city  generally  is  injured  by  a  structure  transgressing  its  gen- 
eral standards.  This  rule  for  special  localities,  like  all  wise 
and  conservative  aesthetic  laws,  is  based  also  on  economic  con- 
siderations. The  special  character  of  the  special  locality  is  an 
asset  of  value  to  every  property  owner  of  that  locality,  of 
which  no  one  owner  has  the  right  arbitrarily  to  deprive  the 
rest.51"33  This  provision  is  only  another  application  of  the  rule 
of  jurisprudence  and  justice  which,  in  all  systems  of  law,  re- 
quires every  one  "sic  utere  tuo  ut  alienum  non  laedas." 

50  See     Roth,     Baden    Building     Ordinance,    pp.     116-17,     note;     Balz, 
Baupoliseirecht,  p.  96,  note  6. 

61-53  See  Roth,  Baden  Building  Ordinance,  p.  113,  note  4.. 


406        THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Dangers  of  Artistic  Censorship. — There  are  grave  dan- 
gers in  the  policy  of  establishing  an  official  censorship  of  any 
branch  of  art.  The  official  taste  may  perhaps  be  better  than 
that  of  the  inferior  artists  but  can  seldom  be  equal  to  that  of 
the  best ;  and  in  any  event  the  imposition  of  a  standard  is  likely 
to  suppress  originality  and  establish  uniformity.  These  dan- 
gers the  German  officials  have,  on  the  whole,  been  remarkably 
successful  in  avoiding.  They  do  not  themselves  make  plans  or 
designs,  or  deal  with  the  owner,  thus  superseding  the  architect ; 
but  instead  revise  the  professional  plan  submitted  to  them ;  and 
they  do  not  attempt  to  introduce  into  these  plans  what  is  ad- 
mirable but  only  to  eliminate  what  is  inappropriate,  elaborate 
and  useless.  In  so  doing  they  almost  invariably  lessen  the  cost 
of  the  structure  to  the  owner  instead  of  increasing  it.04  These 
are  also  the  principles  which  some  of  the  most  successful  of 
the  art  commissions  in  this  country  have  adopted,  with  the 
same  result,  in  passing  upon  structures  to  be  placed  upon  public 
property.55  Nor  should  it  be  overlooked  that  the  German 
Building  Police,  in  causing  the  private  structure  to  be  less 
objectionable  to  the  general  public,  are  also  making  it  more 
valuable  to  the  owner ;  for,  as  every  practical  real  estate  owner 
or  dealer  knows,  an  attractive  structure  built  at  less  cost,  often 
rents  or  sells  more  readily  and  for  a  larger  sum  than  a  more 
expensive  structure  in  which  appearances  have  been  disre- 
garded.56 The  results  attained  in  Germany  are  often  charm- 
ing; but,  even  if  we  do  not  always  approve  of  them,  we  must 

"These  functions  are  exercised  by  "Bureaus  of  Building  Advice." 
Such  bureaus  existed  before  1907,  exercising  in  most  states  more  limited 
powers  with  less  assurance  of  their  legal  right  to  act  than  since  1907. 

"See  p.  563. 

"This  is  true  the  world  over.  In  the  course  of  giving  the  writer 
oral  instructions  as  to  the  investigations  he  was  to  make  in  Europe  in 
behalf  of  the  Heights  of  Buildings  Commission  of  New  York  City  in  1013, 
the  chairman  said :  "You  will  investigate  the  regulations  with  regard  to 
the  appearance  of  streets  and  private  structures  on  them" — Here  a  mem- 
ber of  the  committee  interrupted — "That  would  be  of  no  use  to  us; 
we  cannot  in  this  country  pass  aesthetic  regulations  under  the  police 
power." 

"Let  me  finish,"  said  the  chairman,  "Their  appearance  <w  affecting 
their  rental  and  sale  value." 

The  objection  was  not  pressed. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          407 

remember  that  it  is  not  German  architecture  which  we  are  here 
studying  but  German  city  planning  administration. 

With  the  exception  of  the  provisions  against  the  abuses  of 
outdoor  advertising,  few,  if  any,  attempts  have  been  made 
outside  of  Germany  to  regulate  for  aesthetic  reasons,  under  the 
police  power,  the  use  of  private  property  exposed  to  public 
view.  In  France  and  elsewhere  the  authorities  have  offered 
prizes  for  the  best  facades  erected  in  a  given  time.  Thus  in 
Paris  there  is,  every  year,  a  "Concours  des  facades,"  or  compe- 
tition of  architects  and  builders,  authorized  by  the  Municipal 
Council,  and  approved  by  the  prefect,57  and  the  owners  of  the 
six  best  houses  built  during  the  preceding  year  are  exempted 
from  half  of  certain  municipal  taxes,  and  a  medal  is  given  the 
architect  of  each  of  them.  Perhaps  the  only  statute  passed  in 
the  United  States  with  the  same  general  end  in  view  is  the 
following,  evidently  inspired  by  German  precedent : 

"Cities  of  the  first  class  [i.e.,  Milwaukee]  are  authorized  in  con- 
nection with  architects,  associations  or  otherwise  to  establish  a  bureau 
of  building  plans  for  public  and  private  buildings  for  the  use  of 
citizens  of  such  cities  contemplating  erecting  buildings  to  the  end 
that  uniformly  good  architectural  plans  may  be  secured  for  all  build- 
ings public  and  private,  such  bureau  to  conform  in  its  functions  as 
near  as  may  be  to  plans  adopted  in  Europe  in  like  cases."  K 

And  in  England  the  local  authorities  may  vary  local  by-laws 
so  that  new  buildings  may  harmonize  with  existing  structures 
of  artistic  merit  in  the  neighborhood.59  These  enactments,  so 
much  more  limited  in  their  purpose  and  effect  than  the  Ger- 
man provisions,  do  not  attempt  an  adequate  solution  of  these 
problems.  For  this  reason  the  German  law,  which  alone  makes 
this  attempt,  is  well  worth  consideration  and  study. 

Outdoor  Advertising. — Everywhere  the  control  of  out- 
door advertising  is  a  difficult  and  important  matter,  because 
everywhere  outdoor  advertising  has  become  a  vast  business 

"  Council  vote  of  the  6th  and  20th  of  December,   1897,  and  the  igth 
of  June,  1008;  prefectorial  decree  of  February  2,  1896,  and  May  18,  1909. 
88  Laws  Wisconsin  1909,  ch.  95. 
"See  p.  439- 


408  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

enterprise;  and  because,  owing  to  the  manner  in  which  it  is 
carried  on,  this  advertising  is  often  obtrusive  and  ugly,  as  for 
instance  when  huge  billboards,  covered  with  chewing  gum  and 
patent  medicine  announcements,  line  beautiful  boulevards,  ad- 
join fine  public  buildings  or  face  charming  public  parks.60 

Legally  the  control  of  outdoor  advertising  is  a  complex 
problem,  involving  as  it  does  the  conflicting  rights  of  public 
authorities  and  private  owners  in  public  property  and  land 
abutting  on  it,  and  the  power  of  the  public  under  the  police 
power  and  the  power  of  taxation  to  deal  not  only  with  aesthetic 
but  with  structural  and  fiscal  questions. 

Practically,  therefore,  outdoor  advertising  should  be  dealt 
with  in  all  its  phases  as  one  huge  subject  and  it  is  in  this  way 
that  the  legal  aspect  of  it  will  be  here  considered,  the  law  of 
this  country  on  the  subject  being  first  taken  up. 

Advertising  on  Public  Property. — Outdoor  advertising 
may  occupy  one  of  two  situations :  it  may  be  on  public  property 
or  it  may  be  on  private  property  so  located  as  to  be  visible  from 
public  property. 

Advertisements  might  conceivably  be  affixed  to  public 
buildings  or  placed  in  public  parks  or  similar  public  open  spaces. 
This,  however,  seldom  occurs.61  Advertisements  on  public 
property  are  perhaps  oftenest  to  be  found  on  the  approaches  to 
or  in  the  stations  of  quasi-public  transit  companies  or  upon  or 
in  their  vehicles.  Of  necessity  these  stations  are  often  on  or 
over  the  public  streets,  and  these  vehicles  run  on  or  over  these 
streets.  In  the  case  of  subways  the  stations  and  vehicles  are 
usually  under  the  streets,  in  which  instance — if  the  entire  own- 
ership of  the  land  used  as  a  street  is  in  the  public,  instead  of  a 
mere  easement  for  street  uses — the  subway  stations  and  cars 
are  also  on  public  property. 

The  advertisements  displayed  by  these  companies  are  seldom 

**Mr.  G.  K.  Chesterton  in  a  recent  address  is  reported  by  the  New 
York  Tribune  to  have  said  that  his  first  thought  on  seeing  the  restless 
lights  of  Broadway  was  "what  a  sublime  fairyland  this  would  be  to  any- 
one who  by  some  good  fortune  could  not  read !" 

*  During  the  late  war,  however,  patriotic  advertisements  were  often 
so  placed,  and  private  posters  soon  followed ;  but  recently  this  nuisance 
has  lessened. 


409 

Connected  with  the  business  of  transport  for  which  the  com- 
panies were  chartered ;  the  companies  sell  the  advertising  spaces 
to  others. 

Over  the  business  of  selling  advertising  space,  carried  on 
as  above  described,  the  public  has  control  for  two  reasons: 
first,  no  corporation  may  engage  in  any  business  except  as 
authorized  by  its  charter,  and  the  charter  right  to  engage  in  the 
business  of  public  transport  does  not  include  the  right  to  sell 
advertising  space;  secondly,  no  corporation  or  other  person 
may  advertise  or  authorize  others  to  advertise  on  public  prop- 
erty without  public  consent.  There  are  decisions  holding  that  on 
account  of  the  fact  that  transportation  companies  are  so  com- 
monly allowed,  nowadays,  to  sell  advertising  space,  the  giving 
of  the  privilege  will  be  inferred ;  but  whether  these  decisions, 
under  present  conditions,  are  right  or  wrong,  the  danger  of  this 
presumption  may  be  overcome  by  an  express  term,  properly 
drawn,  in  the  charter  or  operating  contract. 

The  control  of  the  public  over  advertising  on  public  prop- 
erty is  complete.  If,  therefore,  the  public  authorities  have  not 
by  express  or  implied  irrevocable  terms  in  charter  or  operating 
contract,  wholly  or  partly  lost  control,  they  may  forbid  adver- 
tising altogether,  or  limit  its  amount  or  regulate  its  character 
or  location  as  they  see  fit.  Whether  any  measure  of  control  has 
been  lost  or  not,  such  advertisements  may  be  taxed,  and  there 
is  no  legal  reason  why  this  taxation  should  not,  to  a  reasonable 
extent,  increase  progressively  with  the  size  of  the  advertise- 
ment, thus  indirectly  discouraging  large  advertisements.  Tax- 
ation also,  however  imposed,  would  tend  somewhat  to  decrease 
the  total  amount  of  advertising. 

There  is  no  reason  why  the  average  advertisement  should 
be  large.  A  small  advertisement  among  small  advertisements, 
if  so  situated  or  designed  as  to  be  easily  read,  is  as  valuable  as 
a  larger  advertisement  among  others  of  the  same  size.  It  is  all 
a  matter  of  relative  prominence.  Then,  too,  design  is  more 
likely  to  catch  and  hold  the  attention  than  mere  size,  and  is 
much  more  admirable.  A  decrease  in  the  size  and  total  area  of 
signs  in  public  service  stations  would  make  it  possible  to  group 
and  locate  them  without  interfering  with  the  appearance  of  the 


410          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

structure.  It  is  mere  waste  to  decorate  a  building  expensively 
and  beautifully,  as,  for  instance,  has  been  done  in  the  subway 
stations  in  New  York  City,  and  allow,  as  is  done  there,  huge, 
badly  located  signs  and  billboards  to  obliterate  and  cut  into 
the  designs. 

Advertising  on  Private  Property. — To  be  classed  also 
as  advertising  on  public  property,  subject  to  regulation  as  such, 
are  advertisements  attached  to  private  property  in  so  far  as  they 
project  upon  or  over  public  property,  as  is  often  the  case  with 
signs  on  private  buildings  situated  along  public  streets.  Ad- 
vertising wholly  on  private  property,  so  situated  as  to  attract 
public  attention  and  deriving  its  value  entirely  from  its  ability 
to  do  so,  is,  in  its  nature,  as  public  as  advertising  on  public  prop- 
erty. Nevertheless  such  advertising  on  private  property  is 
regarded  in  law  as  a  totally  different  enterprise. 

Signs  on  private  property  may  be  used  either  to  advertise 
business  carried  on  upon  the  premises,  or  to  promote  the  sale 
of  goods  made  and  sold  elsewhere.  It  is  with  relation  to  adver- 
tising for  the  latter  purpose  that  most  of  the  abuses  occur.82 

Signs  may  be  situated  upon  roofs,  upon  the  front  of  build- 
ings or  upon  billboards  on  the  ground.  Each  class  of  signs 
has  its  special  structural  danger,  and,  as  a  structure  or  as  some- 
thing attached  to  a  structure,  may  be  regulated  freely  as  such. 
Roof  signs  may  succumb  to  wind  pressure  and  fall,  or  may 
interfere  with  firemen  in  their  duties;  signs  on  the  front  of 
buildings  prevent  the  entrance  of  light  and  air;  and  billboards 
screen  those  inclined  to  commit  deeds  of  lawlessness  and  nui- 
sance. To  prevent  these  and  similar  evils,  the  stability,  size 
and  method  of  construction  of  signs  may  be  freely  regulated ; 
but  against  their  ugliness  the  police  power  in  this  country  may 
not  be  invoked :  and  of  course  it  is  impracticable  to  curb  or 
remedy  a  widespread  evil  of  this  sort  by  eminent  domain,  with 

"There  is  also  much  posting  of  advertisements  on  private  property 
without  the  owner's  consent.  This  is  illegal  without  any  statute  for- 
bidding it ;  and  is  expressly  prohibited  by  statute  in  many  states.  "Snip- 
ing" or  the  indiscriminate  posting  of  bills,  regardless  of  law  or  right 
by  irresponsible  persons,  is  especially  objectionable;  and  in  New  York 
City  and  elsewhere  campaigns  for  the  enforcement  of  the  law  against  it, 
and  the  punishment  of  the  offenders,  have  been  launched,  with  excellent 
effect 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          4" 

compensation.  We  may,  however,  freely  tax  advertisements  on 
private  property,  and  thus  obtain  revenue,  and  perhaps  secure 
some  decrease  in  their  size  and  total  area.63 

88  There  are  laws  for  the  taxation  of  outdoor  advertising  not  only  in 
most  foreign  countries,  but  in  the  United  States ;  see  for  instance  General 
Statutes  of  Connecticut,  Revision  of  1918,  ch.  168. 

In  New  York  State  for  many  years  efforts  have  been  made  to  pass 
laws  for  the  progressive  taxation  of  outdoor  "advertising.  In  1916  (Sen- 
ate Introductory  No.  1456)  and  again  in  1917  (Assembly  Introductory 
No.  792)  there  was  introduced  in  the  New  York  legislature  a  bill  (which 
never  passed)  granting  cities  the  power  if  they  saw  fit,  to  levy  such  taxes. 
This  bill  authorized  cities : 

"To  levy  and  collect  taxes  upon  advertisements,  advertising  signs  and 
devices ;  upon  the  maintenance  or  public  display  thereof ;  upon  structures 
and  spaces  for  the  public  display  thereof;  upon  the  business  of  main- 
taining or  publicly  displaying  advertisements  or  advertising  signs  or  de- 
vices, including  the  business,  whether  as  principal  or  as  agent,  of  affixing 
advertisements,  advertising  signs  or  devices  to  realty  or  to  structures  or 
spaces  thereon,  and  the  business  of  owning,  buying,  selling  or  dealing 
in,  interests  in  real  estate  for  such  public  display ;  or  upon  any  real  estate 
or  interest  therein,  within  the  limits  of  the  city,  used  or  intended  for 
the  public  display  of  advertisements,  advertising  signs  or  devices,  on 
account  of  such  use  or  intended  use. 

"The  rate  of  such  tax  may  be  made  to  vary  progressively  in  amount 
or  in  rate  with  the  size  of  any  such  advertisement,  sign,  device,  structure 
or  space  or  its  position  or  location  or  its  prominence  or  with  relation 
to  any  circumstance  relevant  to  its  value  as  an  advertisement." 

The  advocates  of  taxation  of  outdoor  advertising  criticised  the  above 
bill  because  it  did  not  provide  for  the  taxation  of  such  advertising  out- 
side, as  well  as  within,  the  limits  of  cities.  Neither  villages  and  towns 
nor  counties  in  New  York  State  have  the  governmental  machinery  to 
take  advantage  of  an  act  empowering  them  to  frame  and  enforce  tax 
measures.  For  this  reason  a  bill  imposing  such  a  tax  on  such  advertising 
throughout  the  state  was  drawn.  This  bill,  introduced  for  a  number  of 
years  but  never  passed,  was  in  form  the  enactment  of  an  additional  article 
to  the  New  York  State  tax  law.  The  bill  introduced  in  1922  (Senate 
Int.  No.  555,  print  number  1652)  given  in  full  below,  is  practically  the  same 
as  in  former  years  except  for  the  omission  of  a  portion  of  sec.  403  of 
the  bill  of  1921.  For  the  information  of  the  student  this  portion  has  been 
inserted,  in  brackets  in  the  corresponding  section  (423)  of  the  1922  bill. 

ARTICLE  XVIII     . 
Taxes  on  Out-of-Door  Advertisements  and  Advertising  Devices 

Section  420.  Tax  on  out-of-door  advertising. 

421.  Definitions;  application  of  article. 

422.  Exemption  from  tax. 

423.  Rate  of  tax. 

424.  Annual  tax ;  when  due ;  to  whom  paid. 

425.  Computation  of  taxable  area. 

426.  Application  for  tax  receipt ;  statement  of  tax  due. 

427.  Changes  in  advertising  structures. 

428.  Identification  plate  or  label. 

429.  Disposition  of  tax. 


412          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Outdoor  Advertising  in  Residential  Neighborhoods. — 
Billboards  in  residential  neighborhoods  are  less  profitable  than 

Section  430.     Removal   of   unauthorized  advertisements ;   penalties   for 
unauthorized  display  or  removal  of  notices. 

431.  Designation  of  officers  for  enforcement  of  article. 

432.  Duties  of  state  board  of  tax  commissioners. 

Sec.  420.  Tax  on  out-of-door  advertising.  There  is  hereby  imposed 
a  tax  at  the  rate  hereinafter  prescribed  on  out-of-door  advertisements  and 
advertising  devices,  now  maintained  or  hereafter  erected,  displayed  and 
maintained  in  the  cities,  villages  and  towns  of  the  state,  and  such  tax 
shall  be  assessed,  paid  and  applied,  and  such  advertisements  and  adver- 
tising devices  shall  be  regulated  and  controlled  as  provided  in  this  article. 

Sec.  421.  Definitions;  application  of  article,  i.  Advertisements  or 
advertising  devices  made  the  subject  of  taxation  and  regulated  as  pro- 
vided in  this  article,  mean  and  include  the  out-of-door  public  display  of 
any  advertisements  or  advertising  devices  painted,  printed,  pasted,  posted 
on,  or  otherwise  affixed  to,  any  building,  billboard  or  structure  of  any 
kind  on  real  property. 

2.  The  tax  imposed  by  this  article  on  out-of-door  advertising  shall 
be  deemed   to  be  imposed   with   reference  to  each  separate  billboard  or 
other  advertising  structure,  or  in  case  of  such  advertisement  on  the  roofs, 
wall  or  sides  of  a  building,  with  reference  to  each  separate  surface  oc- 
cupied with  advertising  matter,  for  the  time  for  which  the  tax  is  paid, 
whether  the   advertisement  displayed   on   such   billboard  or  structure  or 
in  said  space  shall  be  the  same  for  the  period  for  which  the  tax  is  paid, 
or  shall  be  changed  from  time  to  time. 

3.  The  tax  hereby  imposed  and  the  provisions  of  this  article  shall 
also  apply  to  advertisements  or  advertising  devices  maintained  and  dis- 
played on  any  billboard  or  other  structure,  wall,  fence  or  railing,*  erected 
or  constructed  in  or  upon  any  public  street  or  highway  or  other  public 
place,  and  the  owner  or  lessee  of  any  such  structure,  wall,  fence  or  railing 
shall  be  deemed  to  be  the  owner  or  lessee  of  real  property  for  the  pur- 
poses of  this  article: 

Sec.  422.  Exemption  from  tax.  There  shall  be  excepted  from  and 
not  taxable  under  this  article. 

1.  Signs,  announcements  or  devices  advertising  goods  manufactured, 
or  the  business  conducted,  or  a  performance  given  upon  the  premises, 
or  giving  the  name  of  the  person,  firm  or  corporation  manufacturing  the 
goods  or  conducting  the  business  or  giving  the  performance,  or  stating 
the  location  of  the  premises  or  of  other  places  of  business  of  the  occu- 
pant.    Except  in  the  case  of  the  owner  or  the  lessee  of  the  entire  parcel 
of  real  property  or  building,  the  exceptions  of  this  paragraph  shall  apply 
only  to  that  portion  of  the  property  or  building  occupied  by  the  business 
to  which  the  sign,  announcement  or  device  relates. 

2.  The  name  or  address  of   any  building  and  of  any  person  doing 
business  therein  put  upon  said  building;  notices  upon  any  real  property 
stating  that  the  property  is  for  sale  or  rent ;  danger  or  cautionary  notices 
relating  to  the  premises ;  advertisements  or  notices  required  by  law  or 
in  any  legal  proceedings  or  put  up  by  public  authority. 

3.  Signs  containing  only  (a)  the  name  of  the  adjacent  highway,  or  (b) 
warning  of  the  condition  of  or  dangers  of  travel  on  a  highway,  or   (c) 
the  distance  or  direction  of  any  city,  village  or  public  place,  or  (d)   the 
name  of  anv  automobile  association  or  club,  or  board  of  trade  or  similar 

*  The  words  "platform  or  station"  in  bill  u  introduced  (No.  55$)  stricken  out 
in  this  print  number. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          413 

in  the  more  crowded  business  sections ;  and  are  more  objection- 
able there.     They  are  usually  erected  on  vacant  lots;  and  by 

civic  organization  erecting  such  signs,  or  (e)  either  or  both  of  such  desig- 
nations. 

4.  Notices   of   any   railroad   or   other  transportation  or  transmission 
company   necessary    for   the    direction   or    information   or    safety   of    the 
public  or  announcing  the  name  of  any  station  or  office  of  such  company. 

5.  Signs    or    advertisements    or    advertising    devices    (a)    maintained 
and  displayed  inside  a  building,  or    (b)    within  a  show  window  actually 
and  chiefly  used  for  the  display  of  merchandise  of  the  class  or  character 
of  the  articles   described  in  the  advertisement,  and  notices   so  displayed 
announcing  a  lecture  or  entertainment  not  a  professional  theatrical  per- 
formance. 

6.  Signs    or    advertisements    or    advertising    devices    maintained    and 
displayed  on  or  in  any  car,  station,  subway  or  structure  of  a  corporation 
subject  to  the  provisions  of  the  Public  Service  Commission  Law.* 

Sec.  423.  Rate  of  tax.  I.  The  tax  herein  imposed  shall  be  ten  cents 
for  each  square  foot  of  the  area  of  the  advertisement  or  advertising 
device  to  which  it  shall  apply,  computed  as  hereinafter  provided. 

[i.  The  tax  herein  imposed  shall  be  paid  for  each  square  foot  of  the 
area  of  the  advertisement  or  advertising  device  to  which  it  shall  apply, 
computed  as  hereinafter  provided. 

2.  The  rate  of  tax  imposed  on  advertisements  and  advertising  devices 
subject  to  tax  as  herein  provided  shall  be  as  follows : 

a.  In  a  boroygh  in  a  city  of  the  first  class  having  by  the  last  state 
census  a  population  of  seven  hundred  thousand  or  more,  such  tax  for 
the  first  nine  square  feet  shall  be  at  the  rate  of  sixty  cents  a  square  foot, 
and  for  the  next  nine  square  feet  or  any  portion  thereof  at  the  rate  of 
ninety  cents  a  square  foot,  and  for  the  next  nine  square  feet  or  any  por- 
tion thereof  and  for  all  in  excess  of  such  area  at  the  rate  of  one  dollar 
and  twenty  cents  a  square  foot. 

b.  In  a  borough  in  a  city  of  the  first  class  having  a  population  of 
less  than  seven  hundred  thousand,  and  in  any  other  city  of  the  first  class, 
such  tax  for  the  first  nine  square  feet  shall  be  at  the  rate  of  fifty  cents 
a  square  foot,  and  for  the  next  nine  square  feet  or  any  portion  thereof 
at  the  rate  of   seventy-five  cents  a   square  foot,  and  for  the  next  nine 
square  feet  or  any  portion  thereof   and  for  all  in  excess  of   such  area 
at  the  rate  of  one  dollar  a  square  foot. 

c.  In  all  cities  of  the  second  and  third  classes,  such  tax  for  the  first 
nine  square  feet  shall  be  at  the  rate  of  forty  cents  a  square  foot,  and 
for  the  next  nine  square  feet  or  any  portion  thereof  at  the  rate  of  sixty 
cents  a  square  foot,  and   for  the  next  nine  square   feet  or  any  portion 
thereof  and  for  all  in  excess  of  such  area  at  the  rate  of  eighty  cents  a 
square  foot. 

d.  In  towns  and  villages  outside  of  cities,  such  tax  for  the  first  nine 
square  feet  shall  be  at  the  rate  of  twenty-five  cents  a  square  foot,  and 
for  the  next  nine  square  feet  or  any  portion  thereof  at  the  rate  of  forty 
cents  a  square  foot,  and   for  the  next  nine  square  feet  or  any  portion 
thereof  and  for  all  in  excess  of  such  area  at  the  rate  of  sixty  cents  a 
square   foot. 

3.  In  case  of  an  advertisement  or  advertising  device  maintained  and 
displayed  in  or  upon  a  station  or  structure  of  a  subway,  elevated  or  other 
rapid  transit  road,  street  railroad  or  railroad,  the  rate  for  each  square 
foot  of  surface  of  such  advertisement  or  advertising  device,  computed  as 

*  This    paragraph,    not    in    original    bill    (No.    555),    was    inserted    in    this    print 
number. 


414  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

giving  the  street  as  a  whole  an  ugly  appearance,  affect  the  value 
of  neighboring  real  estate,  just  as  they  render  it  less  agreeable 


hereinafter  provided,  shall  be  as  follows :  In  cities  having  a  population 
of  one  million  or  over,  one  dollar ;  in  other  cities  of  the  first  class,  seventy- 
five  cents;  in  cities  of  the  second  class,  fifty  cents;  and  in  all  other  places, 
thirty  cents.  If  the  area  of  such  advertisement  or  advertising  device, 
computed  as  hereinafter  provided,  shall  exceed  twenty  square  feet,  such 
rate  shall  be  doubled ;  if  such  area  exceed  forty  square  feet,  the  rate  shall 
be  trebled ;  and  the  rate  for  the  entire  surface  shall  progress  in  like  man- 
ner for  each  twenty  square  feet  of  surface  of  the  advertisement.] 

Sec.  424.  Annual  tax ;  when  due ;  to  whom  paid.  The  tax  imposed 
by  this  article  shall  be  for  the  calendar  year  beginning  January  first  and 
shall  be  payable  in  advance.  The  tax  imposed  upon  advertisements  and 
advertising  devices  taxable  under  this  article  maintained  when  this  act 
takes  effect,  and  upon  advertisements  and  advertising  devices  erected, 
maintained  and  displayed  after  January  first  in  any  year,  shall  be  com- 
puted by  monthly  parts  and  shall  be  payable  for  as  many  twelfths  as 
there  are  months  or  parts  of  months  remaining  in  the  calendar  year  for 
which  the  tax  is  imposed,  but  not  for  less  than  three  months.  The  mini- 
mum tax  for  any  period  shall  be  one  dollar. 

The  tax  hereby  imposed  shall  be  assessed  and  collected  in  a  city  by 
the  mayor  thereof  or  by  some  officer  to  be  designated  or  appointed  by 
him ;  in  a  village  by  the  president  thereof  or  by  some  officer  designated 
or  appointed  by  him ;  and  in  the  portion  of  a  town  outside  a  city  or 
village  by  the  supervisor  thereof. 

Sec.  425.  Computation  of  taxable  area.  The  number  of  square  feet 
in  any  advertisement  or  advertising  device  shall  be  computed  by  measur- 
ing its  longest  horizontal  and  vertical  dimensions,  so  that  the  area  taxed 
shall  be  a  rectangle,  whether  or  not  the  entire  space  is  covered  by  the 
advertisement  or  device.  In  case  of  an  advertisement  or  advertising 
device  which  is  affixed  to  a  structure  erected  on  supports  above  the  ground 
or  above  the  roof  of  a  building,  the  area  shall  be  computed  by  measuring 
the  smallest  rectangle  in  which  it  is  possible  to  include  all  parts  of  such 
structure. 

Sec.  426.  Application  for  tax  receipt ;  statement  of  tax  due.  i.  The 
owner  or  lessee  of  any  real  property  desiring  to  maintain  and  display,  or  to 
permit  to  be  maintained  and  displayed,  upon  such  real  property  any  tax- 
able advertisement  or  advertising  device  or  to  increase  the  dimensions 
of  one  upon  which  a  tax  has  been  paid,  shall  make  application  in  writing 
to  the  officer  of  the  city,  village  or  town  in  which  such  real  property  is 
located  to  whom  the  tax  is  required  to  be  paid.  Such  application  shall 
contain  the  name  and  address  of  the  applicant,  the  location  of  the  prop- 
erty, and  shall  state  the  dimensions  of  the  advertisement,  advertising 
device  or  advertising  structure,  so  that  the  taxable  area  thereof  may  be 
ascertained.  There  shall  also  be  submitted  with  such  application  a  plan 
showing  the  location  of  such  advertisement,  advertising  device  or  adver- 
tising structure,  and  a  brief  description  sufficient  to  identify  and  classify 
the  same. 

2.  Upon  receipt  of  such  application  and  if  satisfied  that  the  statements 
therein  contained  are  accurate  and  in  sufficient  detail,  the  officer  to  whom 
the  application  is  made  shall  furnish  a  statement  to  the  person  applying, 
setting  forth  the  amount  of  tax  due  and  payable  for  maintaining  such 
advertisement  or  advertising  device  or  for  the  erection  and  maintenance 
thereof.  Upon  payment  of  the  tax  due,  such  officer  shall  issue  a  receipt 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          415 

for  residence.  It  is  interesting  to  note  in  this  connection  that 
a  recent  court  decision  has  held  that  in  residential  neighbor- 
therefor  bearing  an  identifying  number  and  stating  the  amount  of  the 
tax,  the  period  for  which  it  is  paid  and  the  location  of  the  real  property. 

3.  The    officer   to   whom   applications    are   made    as    herein   provided 
shall  keep  an  accurate  record  of  such  applications  and  of  the  tax  receipts 
issued  by  him,   specifying  the  identifying  number  thereof,  the  name  of 
the  applicant,  the  location  of   the  real  property,  the  description  of  the 
advertisement  or  advertising  device  and  the  amount  of  tax  paid. 

4.  The  officer  whose  duty  it  is  to  assess  and  collect  taxes  hereby  im- 
posed shall  ascertain  whether  advertisements  or  advertising  devices  sub- 
ject to  tax  hereunder  are  being  maintained  or  displayed  in  the  city,  village 
or  town  in  which  he  has  jurisdiction,  and  if  no  application  is  made  for 
the  maintenance  and  display  of  such  advertisement  or  advertising  device, 
or  if  the  application  made  is  incomplete  or  unsatisfactory  and  the  appli- 
cant neglects  or  refuses  to  correct  or  amend  the  statements  therein,  such 
officer  shall  estimate  the  area  of  such  advertisement  or  advertising  device 
and  impose  a  tax  thereon  at  the  rate  herein  prescribed,  according  to  his 
judgment  and  belief.     Upon  ascertaining  and  imposing  such  tax  he  shall 
give  notice  to  the  owner  or  lessee  of  the  real  property  upon  which  such 
advertisement    or    advertising    device    is    maintained    and    displayed    and 
such  tax  shall  be  due  and  payable  from  the  time  of  the  service  of  such 
notice. 

Sec.  427.  Changes  in  advertising  structures.  If  at  any  time  the  per- 
son who  has  paid  a  tax  for  the  maintenance  and  display  of  any  advertise- 
ment or  advertising  structure,  space  or  device  as  provided  in  this  article 
shall,  during  the  term  for  which  such  tax  has  been  paid,  desire  to  en- 
large or  relocate  the  same  upon  the  same  premises,  or  make  any  struc- 
tural changes  therein,  other  than  those  incidental  to  the  repair  of  the 
same  or  to  changing  the  advertisement  in  the  space  thus  occupied,  for 
which  the  tax  has  been  paid,  he  shall  make  a  new  application  therefor 
stating  also  briefly  the  particulars  of  the  old  application  and  the  amount 
of  tax  paid  thereon,  and  if  the  tax  payable  upon  the  new  advertising 
structure,  space  or  device  shall  be  greater  than  that  upon  the  old  deduc- 
tion shall  be  made  from  the  amount  of  such  greater  tax  of  whatever 
sum  has  been  paid  on  such  former  application  for  the  same  period. 

Sec.  428.  Identification  plate  or  label.  Every  taxable  advertisement, 
advertising  device  or  advertising  structure  shall  have  affixed  thereto  or 
painted  thereon  a  plate  or  label  in  a  form  to  be  prescribed  by  the  state 
tax  commission,  which  shall  legibly  state  the  name  of  the  person,  firm  or 
corporation  maintaining  such  advertisement,  advertising  device  or  struc- 
ture, and  that  the  tax  imposed  upon  such  advertisement  has  been  duly 
paid,  and  shall  state  the  number  of  the  tax  receipt  issued  therefor.  The 
absence  of  such  plate  or  label  shall  be  prima  facie  evidence  of  the  non- 
payment of  the  tax.  The  mayor  of  the  city,  the  president  of  the  village 
or  the  supervisor  of  the  town,  in  which  such  advertisement  or  advertis- 
ing device  or  structure  is  being  maintained  and  displayed,  or  any  au- 
thorized representative  of  such  officer  or  any  peace  officer  when  duly 
designated  by  such  officer,  may  inspect  any  such  advertisement,  advertis- 
ing device  or  structure  at  any  reasonable  hour  during  the  day  time,  and 
for  such  purpose  may  enter  the  premises  upon  which  the  same  is  erected 
or  maintained  or  to  which  it  is  attached. 

Sec.  429.  Disposition  of  tax.  The  taxes  imposed  by  this  article  shall 
when  collected  be  paid  into  the  general  fund  of  the  city,  village  or  town 
in  which  the  taxable  advertisement  or  advertising  device  is  located,  and 


416  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

hoods  the  city-may  require  the  permission  of  neighboring  real 
estate  owners  before  issuing  a  permit  for  the  erection  of  a  bill- 
shall  be  used  and  applied  for  the  same  purpose  as  other  general  funds 
of  the  city,  village  or  town. 

Sec.  430.  Removal  of  unauthorized  advertisements ;  penalties  for  un- 
authorized display  or  removal  of  notices.  I.  If  an  advertisement  or 
advertising  structure  or  device  shall  be  maintained  and  displayed  upon 
real  property  without  the  payment  of  the  tax  hereby  imposed,  the  officer 
charged  with  the  collection  of  the  tax  shall  notify  the  owner  or  lessee 
of  such  real  property  of  the  amount  of  tax  due  by  serving  notice  of  such 
amount  upon  such  owner  or  lessee,  in  person  or  by  mail,  to  his  last  known 
address,  or  if  such  address  is  unknown,  by  posting  such  notice  upon  such 
advertisement  or  advertising  device.  If  such  tax  is  not  paid  or  such 
advertisement  is  not  removed  or  obliterated  within  thirty  days  after  such 
notice,  the  mayor  of  the  city,  the  president  of  the  village  or  the  super- 
visor of  the  town  may  bring  suit  against  the  owner  or  lessee  of  such 
real  property  for  the  recovery  of  such  tax,  together  with  the  penalties 
imposed  as  provided  in  this  section. 

2.  No  taxable  advertisement  or  advertising  structure  or  device  shall 
be  erected,  maintained  or  displayed  upon  any  real  property,  nor  shall  its 
dimensions  be  increased  unless  the  tax  imposed  by  this  article  shall  have 
been  paid.     The  owner  or  lessee  of  any  real  property  permitting  an  ad- 
vertisement or  advertising  device  to  be  maintained  or  erected  upon  such 
real    property   without   the   payment   of   the  tax   imposed   by   this   article 
shall  be  liable,  in  addition  to  the  tax,  to  a  penalty  of  twice  the  amount  of 
such  tax,  to  be  collected  by  suit  by  the  mayor  of  the  city,  president  of 
the   village   or   supervisor   of   the   town  in   which    such    real   property   is 
located. 

3.  No  person  shall  be  taxable  or  liable  to  a  penalty  on  account  of  an 
advertisement    or   advertising    structure   or    device    maintained    and    dis- 
played upon  his  property  without  his  knowledge,  or  for  which  he  receives 
no  compensation,  provided  he  removes  the  same  within  thirty  days  after 
he  has  received  notice  that  the  tax  on  such  advertisement  or  advertising 
structure  or  device  has  not  been  paid. 

4.  Any   person   who   shall   erect,   maintain,   post,   paint   or   otherwise 
attach  or  affix  any  taxable  advertisement  or  advertising  structure  or  de- 
vice upon  any  real  property  without  the  consent  of  the  owner  or  lr<-i<- 
thereof,  or  shall  remove  or  deface  or  destroy,  without  reasonable  cause 
therefor,  any  notice  affixed  under  the  provisions  of  this  section  or  any 
identification   plate  or  label   attached  to  such   taxable  advertisement,  ad- 
vertising structure  or  device,  shall  be  guilty  of  a  misdemeanor. 

5.  Nothing  in  this  article  shall  be  construed  to  compel  the  owner  or 
lessee  of  a  building  or  other  structure  on  which  a  sign  or  advertisement 
has  heretofore  been  painted  or  otherwise  displayed  or  attached  in  such 
manner  as  not  to  be  removable  or  obliterated  without  injury  t<i  the  build- 
ing or  structure  and  without  expense  to  such  owner  or  lessee,  to  pay  any 
tax  on  account  of  such  sign  or  advertisement  or  to  remove  or  obliterate 
the  same,  unless  such  owner  or  lessee  is  the  person  or  corporation,  or 
the  agent  of  the  person  or  corporation,  whose  goods,  wares,  merchandise 
or  service  are  advertised  l>y  such  sign  or  advertisement.* 

Sec.  431.     Designation  of  officers  for  enforcement  of  article.    A  mayor 
of  a  city,  president  of  a  village  or  supervisor  of  a  town  may  designate 
an  existim:  city,  village  or  town  officer  or  may  appoint  an  officer  to  per- 
form the  duties  prescribed  by  this  article.    The  compensation  for  the  per- 
*  Par.  s,  imt  it)  original  bill  (No.  555),  wu  inserted  in  this  print  number. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          417 

formance  of  such  duties  shall  be  fixed  and  paid  in  the  same  manner  as 
for  other  city,  village  or  town  officers.  If  the  duties  hereby  required 
to  be  performed  are  delegated  to  an  existing  officer,  additional  compensa- 
tion may  be  allowed  therefor  in  like  manner. 

Sec.  432.  Duties  of  state  tax  commission.  The  state  tax  commission 
shall  prescribe  the  form  of  applications,  tax  receipts,  plates  and  labels 
required  to  be  used  under  this  article,  and  shall  have  the  same  powers 
and  duties  as  to  the  enforcement  of  the  provisions  of  this  article  as  are 
imposed  upon  it  in  relation  to  the  assessment  and  taxation  of  real  prop- 
erty. Such  board  is  hereby  authorized  to  make  rules  to  secure  the  proper 
application  and  enforcement  of  the  provisions  of  this  article. 

The  Mayor's  Billboard  Advertising  Commission  of  the  City  of  New 
York,  1913  (second  printing,  1915)  in  a  proposed  bill  in  other  respects 
much  like  the  one  given  above,  provides  for  a  progressive  rate  of  taxa- 
tion. The  Committee  explains  that  "the  rate  inserted  in  par.  2  as  the 
unit  is  the  rate  suggested  by  the  Commission  on  New  Sources  of  City 
Revenue.  The  rate  in  par.  6  is  merely  tentative." 

The  Section  in  question  (page  89  of  their  report)  is  as  follows: 

"i.  The  tax  herein  provided  for  shall  be  a  progressive  tax  increasing 
in  multiples  of  the  respective  units  of  taxation  as  hereinafter  defined  and 
shall  be  paid  for  each  square  foot  of  the  area  of  the  advertisement  to 
which  it  shall  apply,  computed  as  hereinafter  provided. 

"2.  In  the  case  of  all  advertisements  subject  to  tax  hereby,  except  such 
advertisements  as  shall  be  parts  of  or  erected  or  displayed  in  or  upon  a 
station  or  structure  of  a  subway,  elevated  or  other  rapid  transit  road, 
street  railroad  or  railroad,  the  tax  unit  shall  be  two  one-hundredths  of 
one  per  cent,  per  annum  of  the  value  per  front  foot  of  the  lot  occupied 
by  the  advertisement  according  to  the  last  preceding  assessment.  Where 
such  lot  or  parcel  fronts  on  more  than  one  street  and  no  front  foot 
value  is  given  by  the  tax  department  upon  the  minor  street  or  streets, 
the  tax  unit  for  the  minor  street  or  streets  shall  be  75  per  cent,  of  the 
unit  for  the  major  street.  But  in  no  case  shall  the  tax  unit  be  less  than 
fifty  cents  per  square  foot  in  cities  having  a  population  of  1,000,000  or 
over,  nor  less  than  thirty  cents  per  square  foot  in  cities  of  the  first  class, 
nor  less  than  twenty  cents  per  square  foot  in  cities  of  the  second  class, 
nor  less  than  ten  cents  per  square  foot  elsewhere. 

"3.  If  the  superficial  area  of  such  an  advertisement,  computed  as  here- 
inafter provided,  shall  not  exceed  one  hundred  square  feet  the  rate  per 
square  foot  shall  be  the  tax  unit.  If  such  area  is  greater  than  one  hundred 
square  feet,  but  does  not  exceed  two  hundred  square  feet,  the  rate  shall 
be  twice  such  tax  unit.  If  such  area  -is  greater  than  two  hundred  square 
feet,  but  does  not  exceed  three  hundred  square  feet,  the  rate  shall  be 
three  times  such  tax  unit;  and  the  rate  shall  progress  in  like  manner 
for  each  additional  one  hundred  square  feet  of  superficial  area  of  such 
advertisement. 

"4.  If  no  part  of  the  advertisement  shall  be  more  than  ten  feet  above 
the  curb  level  the  rate  per  square  foot  shall  be  the  tax  unit  or  multiple 
thereof  computed  according  to  the  last  preceding  paragraph.  If  any  part 
of  the  advertisement  is  more  than  ten  feet  above  the  curb  level  but  not 
more  than  twenty  feet  the  rate  shall  be  twice  such  tax  unit  or  multiple 
thereof ;  if  more  than  twenty  feet  but  not  more  than  thirty  feet  the 
rate  shall  be  three  times  such  tax  unit  or  multiple  thereof ;  and  the  rate 
shall  progress  in  like  manner  for  each  additional  ten  feet  in  height  above 
the  curb  level  to  or  at  which  the  highest  part  of  the  advertisement  shall 
be  erected  or  shall  occupy;  and  the  rate  to  be  paid  for  the  whole  adver- 
tisement shall  be  the  highest  rate  to  which  any  part  of  the  advertisement 
is  subject. 


418  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

board ;  84  thus  making  their  location  in  such  neighborhoods  de- 
pendent upon  the  consent  of  such  owners,  as  in  the  case  of 
saloons,  etc.  Still  more  important  is  the  fact  that  outdoor 
advertising,  which  cannot  be  legally  regulated  anywhere  (ex- 
cept, to  some  extent  in  Massachusetts  by  Constitutional 
Amendment65)  because  it  is  ugly,  can,  under  zoning  regula- 
tions, be  altogether  excluded  from  residential  districts  because 
it  is  out  of  place.  This  may  be  done  66  by  passing  a  special 
ordinance  zoning  a  city  as  to  advertising,  or  under  a  general 
building  zone  ordinance  regulating  the  construction  and  use  of 
structures  of  all  kinds;  for  advertising  structures  are  business 
structures,  excluded  from  residential  neighborhoods  as  such, 
without  being  otherwise  mentioned ;  and  the  New  York  regu- 
lation, and  others  which,  like  it,  do  not  specifically  mention 

"5.  Every  advertisement  which  is  illuminated  at  night  by  lights  attached 
or  appurtenant  thereto,  but  not  self -illuminating  signs  on  skeleton  frames 
in  which  the  picture  or  device  is  itself  made  with  lights,  shall  pay  double 
the  rate  as  computed  according  to  the  last  two  preceding  paragraphs. 

"6.  The  tax  unit  per  annum  of  advertisements  which  are  parts  of  or 
erected  or  displayed  in  or  upon  a  station  or  structure  of  a  subway, 
elevated  or  other  rapid  transit  road,  street  railroad  or  railroad  shall  be, 
for  each  square  foot  of  surface  of  such  advertisement,  computed  as 
hereinafter  provided,  as  follows :  In  cities  having  a  population  of 
1,000,000  or  over,  one  dollar ;  in  other  cities  of  the  first  class,  fifty  cents ; 
in  cities  of  the  second  class,  twenty-five  cents;  and  in  other  places  ten 
cents.  If  the  superficial  area  of  such  an  advertisement,  computed  as 
hereinafter  provided,  shall  exceed  ten  square  feet  the  rate  shall  be 
doubled;  if  it  exceed  twenty  square  feet  the  rate  shall  be  trebled;  and 
the  rate  for  the  whole  surface  shall  progress  in  like  manner  for  each 
additional  ten  square  feet  of  surface  of  the  advertisement. 

"7.  Where  a  single  advertising  structure  shall  have  more  than  one 
surface  or  plane  of  display,  all  surfaces  or  planes  of  display  shall  be 
treated  as  one  surface  which  are  visible  from  any  one  point  in  a  street  or 
other  public  place,  for  the  purpose  of  fixing  the  area  of  such  sign." 

Another  bill,  prepared  by  Messrs.  Heydecker  and  Pleydell,  and  referred 
to  in  the  Report  of  the  New  York  Committee  on  New  Sources  of  Revenue, 
was  published  in  the  New  York  "City  Record"  for  January  24,  1913,  and 
subsequently  reprinted  in  pamphlet  form. 

**Cusack  Co.  v.  Chicago,  267  111.  344,  affirmed  242  U.  S.  526  (1917). 
The  decision  cites  the  ordinance.  Similar  ordinances  have  been  passed 
in  other  cities ;  see  for  instance  the  Cincinnati  ordinance,  No.  25 — 1919, 
passed  January  28,  and  the  Toledo  ordinance,  No.  1839,  passed  May  17, 
1920. 

"See  p.  395,  note  22. 

**As  in  Los  Angeles;  see  ordinance  No.  38,  315,  N.  S.,  approved  June 
25,  1918.  The  ordinance  is  reprinted  in  the  report  of  the  American 
Scenic  and  Historic  Preservation  Society  for  1919,  p.  187.  See  also  the 
San  Francisco  ordinance  (No.  4059,  N.  S.)  passed  Feb.  16,  1917. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          419 

billboards  or  outdoor  advertising  in  any  way,  have  been  so 
interpreted  by  officials  acting  under  them.67  Later  ordinances 
do,  in  some  cases,68  specifically  mention  such  structures,  and 
class  them  as  business  structures.69 

Outdoor  Advertising  in  France. — In  our  efforts  to  curb 
the  excesses  of  outdoor  advertising  on  private  property  exposed 
to  public  view,  we  may  gain  encouragement  and  instruction 

67  Roof  signs  are  subject  to  the  height  and  setback  restrictions  of  the 
building  zone  resolution ;  Board  of  Standards  and  Appeals,  New  York 
City,  Bulletin  of  Oct.  n,  1916,  and  Rules,  1920,  p.  45. 

88  As  for  instance  that  for  Lakewood,  Ohio. 

69  An  indirect  method  by  which  to  a  considerable  extent,  advertising 
on  the  street  walls  of  buildings  in  cities  can  legally  be  regulated  on 
aesthetic  grounds,  has  been  suggested  in  the  report  of  the  Mayor's  Bill- 
board Advertising  Commission  of  New  York  (printed  August  i,  1913, 
reprinted  with  a  few  additions  July,  1915;  see  p.  42  of  that  report).  City 
streets  are  held  by  cities  in  trust  for  street  purposes.  Cities  may  grant 
abutters  rights  in  the  streets  (by  revocable  license  only)  or  refrain  from 
granting  them  as  they  see  fit.  Universally  cities  do  allow  encroachments, 
such  as  projecting  steps,  cornices,  ornamental  columns,  balconies,  etc. 
As  the  city  may  withhold  this  privilege,  it  may  attach  conditions  to  it. 
This  is  the  law  in  other  cases  (People  v.  Rosenheimer,  209  N.  Y.  115, 
1913;  Lewis  Publishing  Co.  v.  Morgan,  229  U.  S.  288  (1913),  People  ex 
rel.  Beinert  v.  Miller,  188  Appellate  Division  (N.  Y.)  113  (1919),  up- 
holding an  order  of  the  Board  of  Appeals  of  New  York  City,  in  their 
discretion  allowing  a  stable  to  be  erected  with  one  wall  on  a  residential 
street,  on  condition  that  there  was  no  opening  in  that  wall)  and  would 
undoubtedly  be  so  in  this  one.  The  report  accordingly  recommends  that 
the  privilege  of  encroaching  to  any  extent,  in  any  case,  on  the  public 
highways  be  made  conditional  upon  the  observance  of  such  regulations  on 
advertising  upon  the  building  encroaching,  as  the  city  sees  fit  to  make. 
"Few  owners,"  .  .  .  the  report  rightly  observes,  "are  likely  to  surrender 
lightly  their  present  privilege  of  extending  to  some  degree  beyond  the 
building  line."  In  this  connection  it  is  interesting  to  note  that  it  is  on 
the  principle  here  invoked  that  the  Board  of  Appeals,  in  granting  excep- 
tions to  the  zoning  resolution  in  New  York  City,  constantly  requires  the 
petitioner  to  agree  to  construct  his  building  in  ways  which  improve  its 
appearance  and  make  it  more  acceptable  to  neighbors  for  this  reason ; 
but  being  imposed  for  aesthetic  reasons,  would  not,  as  independent  pro- 
visions, be  valid.  See  also  the  statutes  of  New  Jersey  for  1895  (ch.  28, 
P.  L.,  p.  88)  and  1898  (ch.  191,  P.  L.  439)  in  which  the  state,  owning 
lands  under  navigable  water,  and  granting  them  to  such  parties  and  on 
such  terms  as  it  sees  fit,  directs  its  agents  not  to  part  with  such  lands  in 
ways  which  will  deface  the  Palisades  of  the  Hudson  River.  In  1922  the 
statute  was  further  amended  (P.  L.  1922,  p.  159,  ch.  87)  by  adding  a 
definition  of  "the  Palisades." 

See  also  in  this  connection  Oppenheim  Apparel  Corp.  v.  Cruise,  and 
three  other  cases  reported  in  the  New  York  Law  Journal,  March  2,  1922 
(p.  1914)  sustaining  a  New  York  City  ordinance  prohibiting  certain 
"illuminated  signs"  on  certain  streets.  Such  signs  project  beyond  the 
property  line  (Ordinances,  ch.  23,  art.  16,  sec.  215,  par.  3)  and  a  careful 
reading  of  the  decision  shows  that  it  was  based  upon  that  fact. 


420  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

from  foreign  experience.  France  has  never  attempted  to  pro- 
hibit signs  and  posters  in  all  parts  of  her  cities.  Disfigurement 
not  exceeded  in  all  the  world,  one  is  inclined  to  think,  may  be 
seen  in  many  places  within  the  limits  of  any  of  her  cities,  not 
excluding  Paris,  the  most  beautiful  of  them  all.  Instead  she 
forbids  all  advertising  on  70  or  within  a  certain  distance  of 
structures  and  natural  sites  71  of  historical  and  artistic  impor- 
tance listed  under  her  classification  statutes  of  1887  and  1913, 
already  referred  to.72  In  certain  localities,  also,  advertising  is 
made  a  government  monopoly  under  the  statute  giving  the 
authorities  power  over  publicity  and  the  press,73  the  munici- 
palities erecting  small  tasteful  kiosks  and  forbidding  all  posters 
elsewhere.  In  France,  also,  outdoor  advertising  is  heavily 
taxed,  the  principle  of  a  rate  increasing  progressively  with  the 
size  of  the  advertisement,  being  adopted  under  a  late  statute.74 

Outdoor  Advertising  in  England. — In  England  the  law 
on  this  subject  was  until  recently  like  our  own,  and  the  situa- 
tion worse.  Comfortable  and  convenient  as  they  are,  nothing 
could  be  uglier,  for  instance,  than  the  London  busses  and  the 
London  underground  stations,  nothing  more  confusing  than 
the  mass  of  signs  which  make  it  difficult  to  discover  the  des- 
tination of  a  bus  or  the  name  of  a  station. 

In  1907  England  passed  her  "Advertisements  Regulation 
Act"  7B  under  which  any  local  authority  may  make  bye-laws : 

"(i)  For  the  regulation  and  control  of  hoardings  and  similar 
structures  used  for  the  purpose  of  advertising  when  they  exceed 
twelve  feet  in  height; 

"(2)  For  regulating,  restricting,  or  preventing  the  exhibition 
of  advertisements  in  such  places  and  in  such  manner,  or  by  such 

"Passed  Jan.  27,  1902;  Bull,  des  lois,  XII«  Ser.,  Bull.  2348,  No.  41492, 
p.  1878.  The  title  of  the  act  is  "Law  Modifying  Art.  16  of  the  Law  of 
July  29,  1881,  with  regard  to  the  Press." 

n  Law  of  April  20.  1910.  Bull  des  lois.  Nouv.  Ser..  Bull.  32.  No.  1481 
p.  1123. 

™  In  Italy  municipalities  may  prohibit  advertisements  that  are  on  or 
near  public  buildings  or  monuments,  or  that  deface  the  locality.  Law 
of  Public  Security  of  1889,  Art  65.  See  Raccolta  uffitiale  dellc  leggi  e 
dei  decrcti,  Vol.  91,  No.  5888  decies.) 

"Law  of  July  29,  ifei.  Bull,  des  lois,  XII'  Ser.,  Bull.  637,  No. 
10850. 

14  Law  of  July  12,  1912.  Bull,  des  lois,  Nouv.  Sir.,  No.  4336,  p.  1964. 

"7  Edw.  VII,  ch.  27. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          421 

means,  as  to  affect  injuriously  the  amenities  of  a  public  park  or 
pleasure  promenade,  or  to  disfigure  the  natural  beauty  of  a  land- 
scape." 

Bye-laws  made  under  this  act  may  apply  either  to  the  whole 
of  the  area  of  the  local  authority  or  to  any  specified  part  of  it 
and  must  be  confirmed  by  the  Home  Secretary  who  must  con- 
sider the  objections  of  those  likely  to  be  affected.  The  local 
authorities  may  also  under  sec.  19  of  the  Ancient  Monuments 
Act,  already  quoted,76  prohibit  advertisements  on  or  near  any 
monument  or  structure  of  historic,  traditional,  artistic  or  archi- 
tectural public  interest,  as  may  be  done  in  France.  New  "sky 
signs"  on  the  roofs  of  buildings  were  also  forbidden  in  Eng- 
land in  1907  77  as  they  had  been  previously  in  London.78 

Outdoor  Advertising  in  Germany. — In  almost  if  not 
quite  all  the  German  States,  there  are  now  statutes  under  which 
outdoor  advertising  may  be  forbidden  if  it  disfigures  a  struc- 
ture, street,  square,  or  mars  the  beauty  of  a  city  or  country 
view.  Such  statutes  were  to  be  found  prior  to  1907  79  but  have 
become  much  more  numerous  and  strict  since  about  that  time.80 

Outdoor  advertising  is  also  controlled  under  the  various 
statutes  with  regard  to  publicity  and  the  press.  In  many  parts 
of  Germany  this  advertising  is  a  profitable  government  monop- 
oly conducted,  as  in  France,  with  due  regard  to  the  appearance 
of  public  places. 

The  aesthetic  regulation  of  private  property  exposed   to 

76  P-  399  above. 

"  Public  Health  Acts  Amendment  Act,  1907  (7  Edward  VII,  ch.  53), 
sec.  91. 

78  See  Cubitt,  Building  in  London,  1911,  p.  180,  citing  the  London  Build- 
ing Act,  1894;  57  and  58  Viet.  ch.  213,  Part  XII. 

79  See,  for  instance,  the  Prussian  statute  of  June  2,   1902 ;   sec.  90  of 
the  Saxon  Building  Ordinance  of  July  i,  1900,  as  amended  May  20,  1904. 

80  Outdoor  advertising  is  regulated  under  sec.  3  of  the  Prussian  Statute 
of  1907,  and  sec.  i  of  the  Saxon  Statute  of  1909,  already  cited ;  in  Baden 
by  virtue  of  the  "Polizeistrafgesetzbuch"  of  October  31,   1863   (Reg.  Bl. 
P-  439),  sec.  130,  as  amended  by  the  law  of  August  20,  1904  (Ges.  u.  V.  O. 
Bl.,  p.  397)  and  ib.  sec.  116,  by  virtue  of  which  sees.  33-35  of  the  General 
Building  Ordinance  were  issued ;   in  the  Duchy  of  Anhalt,  by  virtue  of 
sec.   64  of    the    Building    Ordinance    already    cited    above ;    in    Wiirttern- 
berg  by  virtue  of  art.  98,  par.  3  of  the  Building  Ordinance;    in  Bavaria 
by  virtue  of  art.  22,  b.,  par.  n  of  the  Polizeistrafgesetzbuch,  as  amended 
July  6,  1908;  see  note  3  in  edition  of  Englert   (Munich  1912,  Beckh'sche 
Verlagsbuchhandlung)    of  the  Building  Ordinance  for  Bavaria,  p.   183. 


422          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

public  view  is  important  because  public  beauty  is  both  an  asset 
and  an  amenity.  This  the  citizen  of  continental  Europe,  where 
aesthetic  considerations  have  long  prevailed,  fully  recognizes. 
The  Parisian  knows  that  the  beauty  of  his  city  attracts  multi- 
tudes of  tourists  to  it  every  year,  to  his  net  financial  profit; 
and  he  also  appreciates  to  the  full  its  aesthetic  charm,  and  will 
allow  no  one,  with  his  consent,  to  deface  it.  Of  the  two  mo- 
tives for  his  intense  regard  for  the  appearance  of  his  city,  who 
can  doubt  that  the  love  of  its  beauty  is  the  stronger  ?  However 
that  may  be,  the  general  recognition  of  the  worth  of  beauty  is 
everywhere  essential  before  popular  support  for  provisions  to 
secure  it  and  preserve  it  can  be  obtained  on  any  ground.  Our 
only  hope  in  this  country  of  such  a  recognition  is  in  the  gradual 
increase  in  civic  pride  and  taste.  It  is,  therefore,  encouraging 
to  read  in  McQuillin's  book  on  municipal  corporations  81  that 
in  the  opinion  of  the  writer  of  this  standard  work  for  the  prac- 
tical lawyer: 

"It  is  certain  that  much  of  the  legislation  [in  the  United  States] 
of  recent  date,  particularly  during  the  past  two  decades,  has  been 
induced  largely  by  aesthetic  and  artistic  considerations,  and  this 
desire  to  render  the  urban  centers  more  attractive  has  found  a  firm 
lodgment  in  the  popular  mind.  It  is  destined  to  increase  with  the 
years,  and  in  the  development  of  the  law  in  this  respect  courts  will 
be  inclined  to  give  a  broader  interpretation  to  such  regulations,  and 
finally  sanction  restrictions  imposed  solely  to  advance  materially 
attractiveness  and  artistic  beauty." 

Note  F 

Note  /.    THE  FRENCH  LAW  FOR  THE  PROTECTION  OF  PLACES  OF 
NATURAL  BEAUTY* 

ART.  i.  In  each  department  there  shall  be  formed  a  commission 
with  relation  to  places  of  natural  beauty.  This  commission  shall 
be  composed  of  the  prefect*  (four  other  officials  and  five  laymen 
distinguished  in  art,  science  and  letters). 

ART.  2.    This  commission  shall  make  a  list  of  lands  the  preserva- 

*  Summarized. 

*  Sec   929. 

"Passed  April  21,  1906;  to  be  found  in  Bulletin  des  lois,  1906,  XII* 
Se>.  Bull.  2736,  p.  735  (No.  47713). 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          423 

tion  of  which  on  account  of  their  artistic  or  picturesque  character 
would  be  of  general  interest. 

ART.  3.  The  owners  of  the  lands  designated  by  the  commission 
shall  be  asked  to  agree  not  to  destroy  or  change  the  condition  of 
these  places  without  the  special  authority  of  the  commission  and 
the  consent  of  the  Minister  of  Public  Instruction  and  Fine  Arts. 

If  this  agreement  is  made,  the  property  will  be  classified  by  de- 
cree of  the  Minister  of  Public  Education  and  Fine  Arts. 

If  the  owner  refuses  to  make  this  agreement,  the  commission 
shall  notify  the  department  and  the  commune  within  which  the  prop- 
erty is  situated.  Declassification  may  be  effectuated  by  the  same 
method  and  under  the  same  conditions  as  classification. 

ART.  4.  The  prefect  on  behalf  of  the  department,  or  the  mayor 
on  behalf  of  the  commune,  may  under  the  law  of  May  3,  1841,  ex- 
propriate the  properties  designated  by  the  commission  as  susceptible 
of  classification. 

ART.  5.  After  the  establishment  of  the  servitude83  of  classifica- 
tion every  change  of  the  locality  without  the  authority  mentioned  in 
art.  3,  shall  be  punished  by  a  fine  of  from  one  hundred  francs 
(100  f)  to  three  thousand  francs  (3000  f). 

Article  463  of  the  Penal  Code  is  applicable. 

The  prosecution  shall  be  made  on  the  complaint  of  the  commission. 

ART.  6.     This  law  shall  apply  to  Algeria. 

No.  2.    THE  FRENCH  LAW  FOR  THE  PROTECTION  OF  PLACES  AND 
OBJECTS  OF  HISTORIC  AND  ARTISTIC  INTEREST** 

CHAPTER  I 
REAL  PROPERTIES8* 

ART.  i.  Real  properties,  the  conservation  of  which  possesses, 
from  the  point  of  view  of  history  or  of  art,  a  public  interest,  are 
classified  as  historic  monuments  in  whole  or  in  part  in  the  care  of 

83  Known  in  our  law  as  "easement." 

84  Entitled  "Law  with  Regard  to  Historic  Monuments" ;  passed  Decem- 
ber 31,  1913,  superseding  former  laws;  to  be  found  in  the  Bulletin  des 
his  for   1913,  Bull.   120,  p.  3416    (No.   6459).     The   translation   is   that 
of  the  American  Scenic  and  Historic  Preservation  Society  in  its  report 
for  1914,  p.  306. 

85  The  French  word  thus  rendered  is  "immeubles."    It  means  literally 
things    which    cannot   be    transported    and    includes    lands    and    buildings 
which  in  their  nature  are  immovable.     In  a  general  way  it  means  real 
estate  as  distinguished  from  "meubles,"  movables,  or  personal  property. 
But  on  account  of  the  awkwardness  of  using  the  words  "real  estate"  or 
"real    estates"    in   such    expressions    as    "the    destruction,   pulling   down, 
mutilation,  injury  or  removal  of  a  classified  real  estate"    (see  art.  34), 
we  have  used  instead  the  words  "real  property"  or  the  word  "property" 


424  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  Minister  of  Fine  Arts  according  to  the  provisions  established 
by  the  articles  following. 

Included  among  the  real  properties  susceptible  of  being  classified 
according  to  the  terms  of  the  present  law  are  megalithic  monuments, 
prehistoric  stations  or  deposits  and  real  property  the  classification 
of  which  is  necessary  to  isolate,  separate  or  make  safe  a  property 
classified  or  proposed  for  classification. 

From  the  day  when  the  Administration  of  Fine  Arts  gives  notice 
to  the  proprietor  of  his  proposition  for  classification,  all  the  effects 
of  classification  apply  in  full  force  to  the  property.  They  cease  to 
apply  if  the  decision  to  classify  is  not  reached  within  six  months  from 
this  notification. 

Every  order  or  decree  which  shall  pronounce  a  classification  after 
the  promulgation  of  the  present  law  shall  be  transcribed,  under 
the  direction  of  the  Administration  of  Fine  Arts,  to  the  Bureau  of 
Mortgages  of  the  locality  of  the  classified  property.  This  tran- 
scription shall  not  be  subject  to  any  collection  or  profit  of  the 
Treasurer. 

ART.  2.  There  shall  be  considered  as  regularly  classified,  after 
the  promulgation  of  the  present  law,  1st,  the  properties  inscribed  in 
the  general  list  of  classified  monuments  published  officially  in  1900 
by  the  Direction  of  Fine  Arts ;  2nd,  the  properties,  whether  com- 
prised or  not  in  this  list,  which  have  been  made  the  object  of  orders 
or  decrees  of  classification  conformably  to  the  terms  of  the  law  of 
March  30,  1887. 

Within  a  period  of  three  months  the  list  of  properties  considered 
as  classified  before  the  promulgation  of  the  present  law  shall  be  pub- 
lished in  the  Official  Journal.  There  shall  be  drawn  up,  for  each 
of  said  properties,  an  extract  from  the  list,  reproducing  all  that  which 
concerns  it;  this  extract  shall  be  transcribed  to  the  Bureau  of  Mort- 
gages of  the  locality  of  the  property,  under  the  direction  of  the  Ad- 
ministration of  Fine  Arts.  This  transcript  shall  not  be  subject  to 
any  collection  or  profit  of  the  Treasurer. 

The  list  of  classified  properties  shall  be  kept  open;  and  re-edited 
at  least  every  ten  years. 

There  shall  be  drawn  up,  furthermore,  within  a  period  of  three 
years,  a  supplementary  inventory  of  all  buildings  or  parts  of  buildings 

alone  in  this  translation.  While  the  significance  of  "immtublf"  is  fre- 
quently that  of  "building."  yet  the  word  "batimtnt"  does  not  occur  in 
the  law  and  the  word  "edifice"  only  two  or  three  times.  In  those  cases, 
and  those  only,  we  have  used  the  word  "building."  It  should  be  under- 
stood, therefore,  that  the  word  "property"  in  this  translation  means  im- 
movable property  or  real  estate.  There  is  also  in  French  an  "iinmrnhlf 
fictif  or  fictitious  real  estate  which  consists  of  a  movable  object  which 
has  become  affixed  to,  and  therefore  a  part  of,  real  property.  It  is  called 
"immcublc  par  destination,"  This  we  have  rendered  as  "fixture."  (See 
art.  14.) 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          425 

public  or  private  which,  while  not  justifying  a  demand  for  immediate 
classification,  possess  nevertheless  an  archaeological  interest  sufficient 
to  render  desirable  their  preservation.  Inscription  in  this  list  shall 
be  notified  to  the  proprietors  and  shall  impose  upon  them  the  obliga- 
tion not  to  proceed  with  any  alteration  of  the  inscribed  property 
without  having  notified  the  prefectoral  authority  of  their  intention 
five  days  in  advance. 

ART.  3.  Property  belonging  to  the  State  is  classified  by  order  of 
the  Minister  of  Fine  Arts,  in  case  of  accord  with  the  Minister  under 
whose  authority  the  said  property  is  placed. 

In  the  contrary  case,  the  classification  is  pronounced  by  a  decree 
in  Council  of  State. 

ART.  4.  Property  belonging  to  a  department,  to  a  commune  or 
to  a  public  establishment  is  classified  by  an  order  of  the  Minister  of 
Fine  Arts,  if  it  has  the  consent  of  the  proprietor  and  the  approval 
of  the  Minister  under  the  authority  of  whom  it  is  placed. 

In  case  of  disagreement,  the  classification  is  pronounced  by  an 
order  in  Council  of  State. 

ART.  5.  Property  belonging  to  any  person  other  than  those 
enumerated  in  articles  3  and  4  is  classified  by  order  of  the  Minister 
of  Fine  Arts,  if  the  proprietor  consents.  The  order  determines  the 
conditions  of  classification.  If  there  is  a  controversy  about  the  in- 
terpretation or  execution  of  this  act,  it  is  settled  by  the  Minister  of 
Fine  Arts,  with  recourse  to  the  Council  of  State  established  for  litiga- 
tions. 

In  default  of  the  consent  of  the  proprietor,  the  classification  is 
pronounced  by  the  Council  of  State.  The  classification  may  be 
ground  for  the  payment  of  an  indemnity  proportionate  to  the  injury 
which  may  result  to  the  proprietor  from  the  application  of  the  limita- 
tion of  classification  established  by  the  present  paragraph.  The 
claim  must  be  presented  within  six  months  from  the  date  of  the  noti- 
fication of  the  decree  of  classification;  this  act  will  inform  the  pro- 
prietor of  his  eventual  right  to  an  indemnity.  Litigations  relative 
to  the  indemnity  are  adjudged  in  first  instance  by  the  Justice  of  the 
Peace  of  the  canton.  If  there  is  an  appraisal,  there  shall  be  ap- 
pointed but  one  expert.  If  the  amount  of  the  claim  exceed  300  francs, 
there  shall  be  ground  for  appeal  to  the  civil  tribunal. 

ART.  6.  The  Minister  of  Fine  Arts,  in  conforming  to  the  pro- 
visions of  the  law  of  May  3,  1841,  may  always  prosecute  in  the  name 
of  the  State  the  expropriation  of  a  property  already  classified  or 
proposed  for  classification  by  reason  of  the  public  interest  which  it 
possesses  from  the  point  of  view  of  history  or  art.  The  departments 
and  the  communes  have  the  same  power. 

The  same  power  is  open  to  them  with  respect  to  properties  the 
acquisition  of  which  is  necessary  in  order  to  isolate,  separate  or 
make  safe  a  property  classified  or  proposed  for  classification. 


426          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

In  these  various  cases,  the  public  use  is  declared  by  a  decree  in 
Council  of  State. 

ART.  7.  From  the  day  when  the  Administration  of  Fine  Arts 
notifies  the  proprietor  of  an  unclassified  property  of  his  intention 
to  prosecute  the  expropriation,  all  the  effects  of  classification  apply 
with  full  force  to  the  said  property.  They  cease  to  apply  if  the 
declaration  of  public  use  does  not  occur  within  six  months  of  this 
notification. 

When  the  public  use  has  been  declared,  the  property  may  be 
classified  without  other  formalities  by  an  order  of  the  Minister  of 
Fine  Arts.  In  default  of  an  order  of  classification,  it  continues 
nevertheless  provisionally  subject  to  all  the  effects  of  classification, 
but  this  subjection  ceases  entirely  if  within  three  months  from  the 
declaration  of  public  use  the  administration  does  not  seek  to  obtain 
a  judgment  of  expropriation. 

ART.  8.  The  effects  of  classification  follow  the  classified  prop- 
erty into  whatever  hands  it  passes. 

Whoever  conveys  a  classified  property  is  obliged  to  notify  the 
purchaser  of  the  existence  of  the  classification. 

Every  conveyance  of  a  classified  property  must,  within  fifteen 
days  from  its  date,  be  notified  to  the  Minister  of  Fine  Arts  by  the 
person  who  has  consented  to  it. 

Classified  property  which  belongs  to  the  State,  to  a  department, 
to  a  commune  or  to  a  public  establishment  cannot  be  sold  except  after 
the  Minister  of  Fine  Arts  has  been  requested  to  present  his  observa- 
tions; he  must  present  them  within  a  period  of  15  days  after  notifica- 
tion. The  Minister  may,  within  the  period  of  five  years,  declare  null 
a  conveyance  consented  to  without  the  observance  of  this  formality. 

ART.  9.  Classified  property  shall  not  be  destroyed  or  removed, 
even  in  part,  nor  be  the  object  of  a  work  of  restoration,  repair  or 
any  change  whatever,  if  the  Minister  of  Fine  Arts  has  not  given  his 
consent. 

The  works  authorized  by  the  Minister  are  executed  under  the 
surveillance  of  his  administration. 

The  Minister  of  Fine  Arts  may  always  execute  under  the  direc- 
tion of  his  administration  and  at  the  expense  of  the  State,  with  the 
co-operation  of  the  parties  interested,  the  works  of  repair  or  main- 
tenance which  are  judged  indispensable  for  the  conservation  of 
classified  monuments  not  belonging  to  the  State. 

ART.  10.  To  ensure  the  execution  of  urgent  works  of  consoli- 
dation among  classified  properties,  the  Administration  of  Fine  Arts, 
in  default  of  friendly  accord  with  the  proprietors,  may,  if  it  is  neces- 
sary, authorize  the  temporary  occupation  of  these  properties  or 
neighboring  properties. 

This  occupation   is  ordained  by   a  prefectoral   order   previously 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          427 

notified  to  the  proprietor,  and  its  duration  shall  not  in  any  case  ex- 
ceed six  months. 

In  case  of  damage,  it  shall  be  ground  for  an  indemnity  which  is 
regulated  by  the  conditions  provided  by  the  law  of  December  29, 
1892. 

ART.  ii.  No  property  classified  or  proposed  for  classification 
shall  be  included  in  an  inquest86  for  the  purpose  of  expropriation 
for  public  use  except  after  the  Minister  of  Fine  Arts  shall  have  been 
asked  to  present  his  observations. 

ART.  12.  No  new  construction  shall  be  added  to  a  classified  prop- 
erty without  a  special  authorization  of  the  Minister  of  Fine  Arts. 

No  one  may  acquire  any  right  by  prescription  in  a  classified  prop- 
erty. 

Easements"  in  classified  properties  which  may  cause  injury  to 
monuments  are  not  permissible. 

No  easement  may  be  established  by  covenant  in  a  classified  prop- 
erty except  with  the  consent  of  the  Minister  of  Fine  Arts. 

ART.  13.  The  total  or  partial  declassification  of  a  classified  prop- 
erty is  pronounced  by  a  decree  in  Council  of  State,  either  on  the 
proposal  of  the  Minister  of  Fine  Arts  or  at  the  request  of  the  pro- 
prietor. The  declassification  is  notified  to  the  interested  parties  and 
transcribed  to  the  Bureau  of  Mortgages  in  the  locality  of  the  property. 

CHAPTER  II 
MOVABLE   OBJECTS** 

ART.  14.  Movable  objects,  whether  properly  called  movables 
(meubles  proprement  dits)  or  fixtures  (immeubles  par  destination) 
the  conservation  of  which,  from  the  point  of  view  of  history  or  art, 
possesses  a  public  interest,  may  be  classified  by  the  direction  of  the 
Minister  of  Fine  Arts. 

The  effects  of  classification  continue  with  respect  to  classified  fix- 
tures which  again  become  movable  property  so  called. 

ART.  15.  The  classification  of  movable  objects  is  pronounced  by 
an  order  of  the  Minister  of  Fine  Arts  when  the  object  belongs  to 
the  State,  to  a  department,  to  a  commune  or  to  a  public  institution. 
It  is  notified  of  the  interested  parties. 

The  classification  becomes  definitive  if  the  Minister  under  whose 
jurisdiction  the  object  is  or  the  public  body  owning  it  has  not  ob- 
jected within  a  period  of  six  months  from  the  date  of  the  notice 

M  Public  hearing. 
17  "Servitudes." 

*  "Objets  mobUiers,"  or  personal  property,  as  distinguished  from  real 
estate.  See  note  on  page  423  preceding. 


4a8  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

which  has  been  given  them.  In  case  of  objection  it  shall  be  deter- 
mined by  a  decree  in  Council  of  State.  Always,  from  the  date  of 
the  notification,  all  the  effects  of  classification  are  applied  provision- 
ally and  in  full  force  to  the  object. 

ART.  16.  Movable  objects  belonging  to  all  persons  other  than 
those  enumerated  in  the  preceding  article  may  be  classified,  with 
the  consent  of  the  proprietor,  by  an  order  of  the  Minister  of  Fine 
Arts. 

In  default  of  the  consent  of  the  proprietor,  the  classification  can- 
not be  pronounced  except  by  a  special  law. 

ART.  17.  There  shall  be  drawn  up,  under  the  direction  of  the 
Minister  of  Fine  Arts,  a  general  list  of  classified  movable  objects, 
arranged  by  departments.  A  copy  of  this  list,  kept  open,  shall  be  de- 
posited with  the  Minister  of  Fine  Arts  and  the  prefecture  of  each 
department.  It  shall  be  communicated  under  conditions  determined 
by  a  regulation  of  public  administration. 

ART.  18.  All  classified  movable  objects  are  imprescriptible. 
Classified  objects  belonging  to  the  State  are  inalienable. 

Classified  objects  belonging  to  a  department,  commune,  public 
institution  or  institution  of  public  utility  cannot  be  alienated  except 
with  the  authorization  of  the  Minister  of  Fine  Arts  and  in  the  forms 
provided  by  the  laws  and  regulations.  Ownership  therein  cannot  be 
transferred  except  to  the  State,  to  a  public  person  or  to  an  institu- 
tion of  public  utility. 

ART.  19.  The  effects  of  classification  follow  the  object  into  what- 
ever hands  it  passes. 

Every  individual  who  parts  with  a  classified  object  is  required 
to  make  known  to  the  acquirer  the  existence  of  the  classification. 

Every  conveyance  must,  within  fifteen  days  from  the  date  of  its 
accomplishment,  be  notified  to  the  Minister  of  Fine  Arts  by  the  party 
who  consents  to  it. 

ART.  20.  An  acquisition  made  in  violation  of  article  18,  second 
and  third  paragraphs,  is  null.  Actions  in  nullification  or  in  the  prose- 
cution of  a  claim  may  be  instituted  at  any  time  as  well  by  the  Minister 
of  Fine  Arts  as  by  the  original  proprietor.  They  arc  instituted  with- 
out prejudice  to  any  claims  for  damages  which  may  be  made  either 
against  the  contracting  parties  collectively  responsible  or  against  the 
public  officer  who  has  given  his  consent  to  the  alienation.  When 
the  illicit  alienation  has  been  consented  to  by  a  public  person  or  an 
establishment  of  public  utility,  this  action  for  damages  is  instituted 
by  the  Minister  of  Fine  Arts  in  the  name  and  to  the  profit  of  the 
State. 

The  acquirer  or  sub-acquirer  in  good  faith  from  whose  hands 
the  object  is  demanded  has  the  right  of  reimbursement  of  his  price 
of  acquisition;  if  the  claim  is  exercised  by  the  Minister  of  Fine 
Arts,  he  shall  have  recourse  against  the  original  vender  for  the  entire 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          429 

amount  of  the  indemnity  which  he  has  given  to  pay  the  purchaser  or 
sub-purchaser. 

The  provisions  of  the  present  article  are  applicable  to  objects  lost 
or  stolen. 

ART.  21.  The  exportation  of  classified  objects  from  France  is 
prohibited. 

ART.  22.  Classified  objects  may  not  be  altered,  repaired  or  re- 
stored without  the  permission  of  the  Minister  of  Fine  Arts  nor  with- 
out the  surveillance  of  his  administration. 

ART.  23.  There  shall  be  an  examination  of  classified  objects  by 
the  Administration  of  Fine  Arts  at  least  every  five  years. 

Furthermore,  the  proprietors  or  holders  of  these  objects  are  obliged 
when  so  required  to  exhibit  them  to  the  accredited  agents  of  the 
Minister  of  Fine  Arts. 

ART.  24.  The  declassification  of  a  classified  object  may  be  pro- 
nounced by  the  Minister  of  Fine  Arts  either  of  his  own  accord  or 
on  the  demand  of  the  proprietor.  It  is  notified  to  the  interested 
parties. 

CHAPTER   III 
THE    PROTECTION    AND     CONSERVATION     OF     HISTORIC     MONUMENTS 

ART.  25.  The  different  services  of  the  State,  departments,  com- 
munes, public  establishments  or  establishments  of  public  utility  are 
required  to  assure  the  protection  and  conservation  of  classified  mov- 
able objects  of  which  they  are  the  proprietors  or  depositories  or 
with  the  care  of  which  they  are  charged,  and  to  take  the  necessary 
measures  to  that  effect. 

The  expenses  necessitated  by  these  measures  are,  with  the  excep- 
tion of  the  cost  of  construction  or  reconstruction,  local  obligations 
of  the  department  or  the  commune. 

In  default  of  a  department  or  a  commune  taking  the  measures 
considered  necessary  by  the  Minister  of  Fine  Arts,  it  can  be  attended 
to  by  the  decision  of  the  same  Minister  of  his  own  accord. 

By  reason  of  the  expenses  sustained  by  them  for  the  execution 
of  these  measures,  the  departments  and  communes  may  be  authorized 
to  establish  a  visitation  tax  the  amount  of  which  shall  be  fixed  by 
the  Prefect  after  approval  by  .the  Minister  of  Fine  Arts. 

ART.  26.  When  the  Administration  of  Fine  Arts  considers  that 
the  conservation  or  the  security  of  a  classified  object  belonging  to 
a  department,  commune,  or  public  establishment  is  in  peril,  and  when 
the  corporate  owner,  depository  or  party  responsible  for  its  care 
(collectivite  proprietaire,  affectataire  ou  depositaire)  either  does  not 
wish  or  is  not  able  to  take  immediately  the  measures  judged  neces- 
sary by  the  Administration  to  remedy  this  state  of  affairs,  the  Minis- 
ter of  Fine  Arts  may  order  immediately  at  the  expense  of  his  admin- 


430          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

istration  the  conservative  measures,  and  also,  in  case  of  necessity, 
the  provisional  transfer  of  the  object  to  a  cathedral  treasurer,  if  it 
relates  to  religion,  and,  if  it  does  not,  to  a  museum  or  other  public 
place,  national,  departmental  or  communal,  offering  the  desired  guar- 
antees of  security,  and  as  far  as  possible  situated  in  the  vicinity  of 
its  original  location. 

Within  a  period  of  three  months  from  this  provisional  transfer, 
the  conditions  necessary  for  the  protection  and  the  conservation  of 
the  object  in  its  original  location  shall  be  determined  by  a  commission 
convened  by  the  call  of  the  Prefect,  composed,  ist,  of  the  Prefect, 
President  ex  ofKcio;  2nd,  of  a  representative  of  the  Minister  of  Fine 
Arts;  3rd.  of  the  departmental  Archivist;  4th,  of  the  Architect  of 
Historic  Monuments  of  the  department;  5th,  of  a  President  or  Secre- 
tary of  a  local  historical,  archaeological  or  artistic  society,  designated 
as  such  for  a  period  of  three  years  by  order  of  the  Minister  of  Fine 
Arts;  6th,  of  the  Mayor  of  the  commune;  7th,  of  the  Counsellor- 
General  of  the  canton. 

The  corporate  owner,  depository  or  party  responsible  for  its  care 
(collectivite  proprietaire,  offectataire  ou  defiositaire)  may  at  any 
time  obtain  the  return  of  the  object  to  its  original  location  if  it  prove 
that  the  required  conditions  have  been  fulfilled. 

ART.  27.  The  guardians  of  classified  properties  (immeubles)  or 
objects  (objets)  belonging  to  departments,  communes  or  public  estab- 
lishments shall  be  accepted  and  commissioned  by  the  Prefect. 

The  Prefect  is  required  to  make  known  his  acceptance  or  his 
refusal  to  accept  within  the  period  of  one  month.  If  the  public  per- 
son interested  fails  to  nominate  a  guardian  acceptable  to  the  Prefect, 
the  latter  may  appoint  one  of  his  own  motion. 

The  amount  of  compensation  of  guardians  must  be  approved  by 
the  Prefect. 

Guardians  cannot  be  discharged  except  by  the  Prefect.  They 
must  be  sworn. 

CHAPTER   IV 
EXCAVATIONS  AND   DISCOVERIES 

ART.  28.  When,  in  consequence  of  excavations,  works  or  any 
act  whatever,  one  has  discovered  monuments,  ruins,  inscriptions  or 
objects  interesting  to  archaeology,  history  or  art,  on  lands  belonging 
to  the  State,  a  department,  a  commune  or  a  public  establishment  or 
establishment  of  public  utility,  the  Mayor  of  the  commune  must  assure 
the  provisional  conservation  of  the  objects  discovered  and  imme- 
diately notify  the  Prefect  of  the  measures  taken. 

The  Prefect,  as  soon  as  possible,  shall  refer  it  to  the  Minister  of 
Fine  Arts  who  shall  decide  upon  the  definitive  measures  to  be  taken. 

If  the  discovery  takes  place  on  the  land  of  an  individual,  the 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY          431 

Mayor  shall  give  notice  of  it  to  the  Prefect.  On  the  report  of  the 
Prefect,  the  Minister  may  prosecute  the  expropriation  of  the  said  land 
in  whole  or  in  part  on  the  ground  of  public  use,  after  the  forms  of 
the  law  of  May  3,  1841. 

CHAPTER  v 

PENAL  PROVISIONS 

ART.  29.  Every  violation  of  the  provisions  of  paragraph  4  of 
article  2  (altering,  without  previous  notice,  a  property  inscribed  in  the 
supplementary  inventory),  paragraphs  2  and  3  of  article  8  (alienation 
of  a«classified  property),  paragraphs  2  and  3  of  article  19  (alienation 
of  a  classified  movable  object),  and  paragraph  2  of  article  23  (exhibi- 
tion of  classified  movable  objects)  shall  be  punished  by  a  fine  of  from 
1 6  to  300  francs. 

ART.  30.  Every  violation  of  paragraph  3  of  article  i  (effects  of 
the  proposition  for  the  classification  of  a  property),  article  7  (effect 
of  the  notification  of  a  demand  for  expropriation),  paragraphs  i  and 
2  of  article  9  (alteration  of  a  classified  property),  article  12  (new 
constructions,  easements),  or  of  article  22  (alteration  of  a  classified 
movable  object),  of  the  present  law,  shall  be  punished  by  a  fine  of 
from  16  to  1500  francs  without  prejudice  of  an  action  for  damages 
which  may  be  instituted  against  those  who  shall  have  ordered  the 
works  executed  or  the  measures  taken  in  violation  of  said  articles. 

ART.  31.  Whoever  shall  have  alienated,  knowingly  acquired  or 
exported  a  classified  movable  object  in  violation  of  article  18  or  article 
21  of  the  present  law  shall  be  punished  by  a  fine  of  from  100  to  10,000 
francs  and  an  imprisonment  of  from  six  days  to  three  months,  or 
by  only  one  of  these  two  punishments,  without  prejudice  of  actions 
for  damages  mentioned  in  article  20,  paragraph  I. 

ART.  32.  Whoever  shall  have  intentionally  destroyed,  pulled 
down,  mutilated  or  injured  a  property  or  a  classified  movable  object 
shall  be  punished  by  the  penalties  provided  by  article  257  of  the  Penal 
Code  without  prejudice  of  any  damage-interests. 

ART.  33.  The  violations  mentioned  in  the  four  articles  preceding 
shall  be  prosecuted  at  the  suit  of  the  Minister  of  Fine  Arts.  They 
may  be  established  by  proces-verbaux  drawn  up  by  the  conservators 
or  the  guardians  of  classified  properties  or  movable  objects,  duly 
sworn  to  that  effect. 

ART.  34.  Every  conservator  or  guardian  who,  in  consequence  of 
grave  negligence,  shall  have  permitted  the  destruction,  pulling  down, 
mutilation,  injury  or  removal,  either  of  a  classified  property  or  mov- 
able object,  shall  be  punished  by  an  imprisonment  of  from  eight  days 
to  three  months  and  a  fine  of  from  16  to  300  francs  or  by  only  one 
of  these  penalties. 


432 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


ART.  35.    Article  463  of  the  Penal  Code  is  applicable  in  the  cases 
provided  in  the  present  chapter. 


CHAPTER   VI 


VARIOUS   PROVISIONS 

ART.  36.  The  present  law  may  be  extended  to  Algeria  and  the 
colonies  by  regulations  of  public  administration,  which  shall  deter- 
mine under  what  conditions  and  after  what  manner  they  shall  be 
applicable. 

Upon  the  promulgation  of  the  regulation  concerning  Algeria, 
article  16  of  the  law  of  March  30,  1887,  shall  continue  applicable  to 
that  territory. 

ART.  37.  A  regulation  of  public  administration  shall  determine 
the  details  of  application  of  the  present  law. 

This  regulation  shall  be  made  after  advice  of  the  Commission  of 
Historic  Monuments. 

This  Commission  shall  be  equally  consulted  by  the  Minister  of 
Fine  Arts  concerning  all  decisions  made  in  execution  of  the  present 
law. 

ART.  38.  The  Provisions  of  the  present  law  are  applicable  to  all 
properties  and  movable  objects  regularly  classified  before  its  promul- 
gation. 

ART.  39.  The  laws  of  March  30,  1887,  July  19,  1909,  and  Feb- 
ruary 16,  1912,  concerning  the  Conservation  of  Monuments  and  Ob- 
jects of  Art  having  an  Historic  and  Artistic  Interest,  paragraphs  4 
and  5  of  article  17  of  thetlaw  of  December  9,  1905,  concerning  the 
Separation  of  Church  and  State,  and  generally  all  provisions  con- 
trary to  the  present  law,  are  repealed. 

No.  3.    THE  ENGLISH   ANCIENT  MONUMENTS  CONSOLIDATION  AND 
AMENDMENT  ACT,  1913* 

PART   I 
ACQUISITION    OF   ANCIENT   MONUMENTS 

I. — (i)  The  Commissioners  of  Works  may,  with  the  consent  of  the 
Treasury,  purchase  by  agreement,  out  of  any  moneys  which  may  be 
provided  by  Parliament  for  that  purpose,  any  monument  which  ap- 
pears to  them  to  be  an  ancient  monument  within  the  meaning  of  this 
Act. 

(a)  Any  local  authority  within  the  meaning  of  this  Act  may.  if 
they  think  fit,  purchase  by  agreement  any  monument  situate  in  or 

"3  and  4  Geo.  V,  ch.  32. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY 


433 


in  the  vicinity  of  their  area,  which  appears  to  them  to  be  an  ancient 
monument  within  the  meaning  of  this  Act. 

(3)  For  the  purpose  of  any  such  purchase,  the  Lands  Clauses 
Acts80  shall  be  incorporated  with  this  Act  (with  the  exception  of  the 
provisions  which  relate  to  the  purchase  and  taking  of  land  otherwise 
than  by  agreement),  and,  in  construing  those  Acts  for  the  purposes 
of  this  Act,  this  Act  shall  be  deemed  to  be  the  special  Act,  and  the 
Commissioners  of  Works  or  local  authority,  as  the  case  may  be,  shall 
be  deemed  to  be  the  promoters  of  the  undertaking. 

2. — Any  person  may,  by  deed  or  will,  give,  devise,  or  bequeath  to 
the  Commissioners  of  Works  or  to  a  local  authority  all  such  estate  or 
interest  in  any  ancient  monument  as  he  may  be  seized  or  possessed 
of,  and  the  Commissioners  or  authority  may  accept  any  such  gift, 
devise  or  bequest  if  they  think  it  expedient  to  do  so. 

PART   II 


GUARDIANSHIP   OF    ANCIENT    MONUMENTS 

3. — (i)  The  owner  of  any  monument  which  appears  to  the  Com- 
missioners of  Works  to  be  an  ancient  monument  within  the  meaning  of 
this  Act  may,  with  the  consent  of  the  Commissioners,  constitute  them 
by  deed  guardians  of  the  monument. 

(2)  The  owner  of  any  monument  which  appears  to  a  local  au- 
thority to  be  an  ancient  monument  within  the  meaning  of  this  Act, 
and  is  situate  in  or  in  the  vicinity  of  their  area  may,  with  the  con- 
sent of  the  local  authority,  constitute  them  by  deed  guardians  of 
the  monument: 

Provided  that  the  Commissioners  of  Works  or  the  local  authority, 
as  the  case  may  be,  shall  not  consent  to  become  guardians  of  any 
structure  which  is  occupied  as  a  dwelling-house  by  any  person  other 
than  a  person  employed  as  the  caretaker  thereof  or  his  family. 

*(3)~(4)    Entailed  property,  etc. 

(5)  Except  as  provided  by  this  Act,  the  owner  of  a  monument, 
of  which  the  Commissioners  of  Works  or  a  local  authority  become 
guardians  under  this  Act,  shall  have  the  same  right  and  title  to,  and 
estate  and  interest  in,  the  monument  in  all  respects  as  if  the  Com- 
missioners or  local  authority,  as  the  case  may  be,  had  not  become 
guardians  thereof. 

4. —  (i)  Where  the  Commissioners  of  Works  or  a  local  authority 
become  guardians  of  any  ancient  monument  under  this  Act,  they 
shall,  until  they  receive  notice  in  writing  to  the  contrary  from  any 
owner  of  the  monument  who  is  not  bound  by  the  deed  constituting 


Power 
to  con- 
stitute 
Commis- 
sioners 
of  Works 
guardians 
of  ancienl 
monu- 
ments. 


*  Summarized. 
90  See  p.  71. 


434  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

them  guardians  of  the  monument,  maintain  the  monument,  and  shall, 
with  a  view  to  the  maintenance  of  the  monument,  have  access  by 
themselves,  their  inspectors,  agents  or  workmen  to  the  monument  for 
the  purpose  of  inspecting  it,  and  of  bringing  such  materials  and  doing 
such  acts  and  things  as  may  be  required  for  the  maintenance  thereof. 

(2)  All  expenses  incurred  by  the  Commissioners  of  Works  in 
maintaining  the   monument   shall,   subject   to   the    approval   of   the 
Treasury,  be  defrayed  out  of  moneys  provided  by  Parliament. 

(3)  The  expression  "maintenance"   in  this  section   includes  the 
fencing,  repairing,  and  covering  in,  of  a  monument  and  the  doing 
of  any  other  act  or  thing  which  may  be  required  for  the  purpose  of 
repairing  the  monument  or  protecting  it  from  decay  or  injury,  and 
the  expression  "maintain"  shall  be  construed  accordingly. 

Detcrip-  5- — (i)  The  following  persons  shall  be  deemed  to  be  owners  of 

owner. for    monuments  for  the  purposes  of  this  Part  of  this  Act,  that  is  to  say: 
purpowe  (o)  Any  person  entitled  for  an  estate  in  fee  to  the  possession 

or  receipt  of  the  rents  and  profits  of  any  freehold  or  copy- 
hold land; 

(&)  Any  person  absolutely  entitled  in  possession  to  a  beneficial 
lease  of  land  of  which  not  less  than  forty-five  years  are 
unexpired,  but  no  lease  shall  be  deemed  to  be  a  beneficial 
lease  within  the  meaning  of  this  section  if  the  rent  reserved 
thereby  exceeds  one  third  part  of  the  full  annual  value  of 
the  land  demised  by  the  lease; 

(c)  Any  person  entitled  under  any  existing  or  future  settlement 
for  the  term  of  his  own  life,  or  the  life  of  any  other  per- 
son, to  the  possession  or  receipt  of  the  rents  and  profits  of 
land  of  any  tenure,  in  which  the  estate  for  the  time  being 
subject  to  the  trusts  of  the  settlement  is  an  estate  for  lives 
or  years  renewable  for  ever,  or  an  estate  renewable  for  a 
term  of  not  less  than  sixty  years,  or  an  estate  for  a  terra 
of  years  of  which  not  less  than  sixty  are  unexpired,  or 
any  greater  estate; 

(d)  Any  body  corporate,  any  corporation  sole,  any  trustees  for 
charities,  and  any  commissioners  or  trustees  for  ecclesiastical, 
collegiate,  or  other  public  purposes,  entitled,  in  the  case  of 
freehold  or  copyhold  land,  in  fee,  and  in  the  case  of  lease- 
hold land,  to  a  lease  for  an  unexpired  term  of  not  less  than 
sixty  years. 

(2)  Where  any  person  who,  by  virtue  of  this  section,  is  to  be 
deemed  the  owner  of  a  monument  is  a  minor,  or  of  unsound  mind, 
the  guardian  or  committee,  or,  in  Scotland,  the  tutor  or  curator,  as 
the  case  may  be,  of  that  person  shall  be  the  owner  for  the  purposes 
of  this  Part  of  this  Act,  and,  where  such  owner  is  a  married  woman, 
she  shall  have  power  to  execute  a  deed  constituting  the  Commis- 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY 


435 


sioners  of  Works  or  a  local  authority  guardians  notwithstanding  that 
she  is  restrained  from  anticipation. 

(3)  In  this  section  the  expression  "entitled"  means  beneficially 
entitled ;  and  the  expression  "land"  means  land  which  is  the  site  of 
an  ancient  monument,  whether  the  land  is  or  is  not  subject  to  incum- 
brances. 

PART   III 


PROTECTION  OF   ANCIENT   MONUMENTS 

6. — (i)  If  the  Ancient  Monuments  Board  constituted  under  this 
Act  report  to  the  Commissioners  of  Works  that  any  monument  is  in 
danger  of  destruction  or  removal  or  damage  from  neglect  or  in- 
judicious treatment,  and  that  the  preservation  of  the  monument  is  of 
national  importance,  the  Commissioners  may,  if  they  think  fit,  and 
if  it  appears  to  them  that  the  monument  is  an  ancient  monument 
within  the  meaning  of  this  Act,  make  an  order  (in  this  Act  referred 
to  as  a  Preservation  Order)  placing  the  monument  under  the  protec- 
tion of  the  Commissioners: 

Provided  that,  if  in  any  case  the  Commissioners  of  Works  con- 
sider that  the  making  of  such  an  order  is  a  matter  of  immediate 
urgency,  the  Commissioners  may  make  the  order  without  receiving 
any  such  report  as  aforesaid. 

(2)  Where  the  Ancient  Monuments  Board  have  reason  to  believe 
that  any  monument  is  in  danger  as  aforesaid,  and  that  the  preserva- 
tion of  the  monument  is  of  national  importance,  they  may  themselves, 
or  by  any  person  authorised  in  writing  by  them,  enter  at  any  reason- 
able time  upon  any  premises  for  the  purpose  of  enabling  them  to 
determine  by  inspection  of  the  monument  whether  it  is  proper  for 
them  to  report  to  the  Commissioners: 

Provided  that,  unless  the  Ancient  Monuments  Board  consider  that 
the  inspection  of  the  monument  is  a  matter  of  immediate  urgency, 
they  shall  give  not  less  than  seven  clear  days'  notice  to  the  occupier 
of  the  premises  of  their  intention  so  to  enter  upon  them. 

(3)  A   Preservation   Order   shall    have    effect    for   a   period   of 
eighteen  months  after  the  date  on  which  it  is  made,  but  on  the  ex- 
piration of  that  period  shall  cease  to  have  effect  unless  it  has  been 
confirmed  by  Parliament;  and,  if  a  Preservation  Order  so  made  is 
not  confirmed  by  Parliament  within  a  period  of  eighteen  months,  no 
further  Preservation  Order  shall  be  made  with  reference  to  the  same 
monument  until  after  the  expiration  of  five  years  from  the  date  on 
which  the  Order  which  has  ceased  to  have  effect  was  made. 

(4)  The  Commissioners  of  Works  may  bring  in  a  Bill  for  con- 
firming any  Preservation  Order,  and  if,  while  the  Bill  confirming 
any  such  Order  is  pending  in  either  House  of  Parliament,  a  petition 


Orders 

placing 
ancient 
monu- 
ments 
under  pro- 
tection of 
Commis- 
sioners of 
Works. 


436 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


a8  and  jo 
Viet.  c.  27. 

Effect  of 
Preservm- 
tion 
Order. 


String  for 
buildings 
used   as 
dwelling- 
bouse. 


is  presented  against  the  Order,  the  Bill,  so  far  as  it  relates  to  the 
order,  may  be  referred  to  a  select  committee  or,  if  the  two  Houses 
of  Parliament  think  fit  so  to  order,  to  a  joint  committee  of  those 
Houses,  and  the  petitioner  shall  be  allowed  to  appear  and  oppose  as 
in  the  case  of  a  private  Bill. 

(5)  Where  a  Committee  on  a  Bill  for  confirming  any  Preserva- 
tion Order  report  by  a  majority  of  the  members  for  the  time  being 
present  and  voting  that  a  petitioner  against  the  Bill  has  been  unrea- 
sonably subjected  to  expense,  or  has  been  subjected  to  an  unreason- 
able amount  of  expense  in  defending  his  rights  proposed  to  be  inter- 
fered with  by  the  Bill,  they  may  award  cost  against  the  Commis- 
sioners of  Works  and  any  costs  under  this  section  may  be  taxed  and 
recovered  in  accordance  with  the  Parliamentary  Costs  Act,  1865. 

7. — (i)  While  a  Preservation  Order  is  in  force,  the  monument  to 
which  the  Order  relates  shall  not  be  demolished  or  removed,  nor  shall 
any  additions  or  alterations  be  made  thereto  or  any  work  carried  out 
in  connection  therewith  except  with  the  written  consent  of  the  Com- 
missioners of  Works. 

(2)  If,  while  a  Preservation  Order  is  in  force,  it  appears  to  the 
Commissioners  of  Works  that  owing  to  the  neglect  of  the  owner  of 
the  monument  the  monument  is  liable  to  fall  into  decay,  the  Com- 
missioners may,  with  the  consent  of  the  Treasury,  make  an  order 
constituting  themselves  guardians  of  the  monument  so  long  as  the 
Preservation  Order  is  in  force,  and  in  that  case  the  provisions  of 
this  Act  shall,  during  that  period,  take  effect  as  if  the  Commissioners 
had  been  constituted  guardians  by  virtue  of  a  deed  executed  by  the 
owner. 

Any  order  made  under  this  subsection  may  be  revoked  at  any  time 
by  the  Commissioners. 

8. — This  Part  of  this  Act  shall  not  apply  to  any  structure  which  ap- 
pears to  the  Commissioners  of  Works  to  be  occupied  as  a  dwelling- 
house  (otherwise  than  by  a  person  employed  as  the  caretaker  thereof 
or  his  family). 

PART  IV 


Power  to 
receive 

voluntary 
contribu- 
tions   for 
mainte- 
nance of 

.1  • .    ir n t 


GENERAL 

Supplemental  Provisions  as  to  Preservation  of  Monuments 

9. — The  Commissioners  of  Works  or  any  local  authority  may  re- 
ceive voluntary  contributions  toward  the  cost  of  the  maintenance  and 
preservation  of  any  monument  of  which  they  may  become  the  owners 
or  guardians  under  the  provisions  of  this  Act,  and  may  enter  into 
any  agreement  with  the  owner  of  any  such  monument  or  with  any 
other  person  as  to  the  maintenance  and  preservation  of  the  monu- 
ment and  the  cost  thereof. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY 


437 


10. — The  Commissioners  of  Works  and  any  local  authority  may,  in 
respect  of  any  monument  of  which  they  are  the  owners  or  guardians 
(but  where  they  are  guardians  only  with  consent  of  the  owner  of 
the  monument),  enter  into  and  carry  into  effect  any  agreements  for 
the  transfer  from  the  Commissioners  to  the  local  authority,  or  from 
the  local  authority  to  the  Commissioners,  or  from  the  local  authority 
to  another  local  authority,  of  the  monument,  or  of  any  estate  or  inter- 
est therein,  or  of  the  guardianship  thereof. 

ii. — Any  local  authority  may,  if  they  think  fit,  at  the  request  of  the 
owner,  undertake  or  contribute  towards  the  cost  of  preserving,  main- 
taining, and  managing,  any  monument  which  appears  to  them  to  be 
an  ancient  monument  and  is  situate  in,  or  in  the  vicinity  of,  their  area, 
whether  they  have  purchased  the  monument  or  become  guardians 
of  it  under  this  Act  or  not :  Provided  that  the  plans  and  specification 
of  all  works,  other  than  those  of  immediate  necessity,  to  be  under- 
taken or  contributed  by  the  local  authority  shall  be  submitted  to  the 
Ancient  Monuments  Board,  and  the  Board,  if  they  object  to  any 
plans  or  specifications,  shall  report  the  matter  to  the  Commissioner 
of  Works,  whose  decision  shall  be  final. 

12. —  (i)  The  Commissioners  of  Works  shall  from  time  to  time 
cause  to  be  prepared  and  published  a  list  containing — 

(a)  such  monuments  as  are  reported  by  the  Ancient  Monuments 
Board  as  being  monuments  the  preservation  of  which  is  of 
national  importance ;  and 
(6)  such  other  monuments  as  the  Commissioners  think  ought  to 

be  included  in  the  list ; 

and  the  Commissioners  shall,  when  they  propose  to  include  a  monu- 
ment in  the  list,  inform  the  owner  of  the  monument  of  their  inten- 
tion and  of  the  penalties  which  may  be  incurred  by  a  person  guilty 
of  an  offence  under  the  next  succeeding  subsection. 
'  (2)  Where  the  owner  of  any  ancient  monument  which  is  included 
in  any  such  list  of  monuments  as  aforesaid  proposes  to  demolish  or 
remove  in  whole  or  in  part,  structurally  alter,  or  make  additions  to, 
the  monument,  he  shall  forthwith  give  notice  of  his  intention  to  the 
Commissioners  of  Works,  and  shall  not,  except  in  the  case  of  urgent 
necessity,  commence  any  work  of  demolition,  removal,  alteration,  or 
addition  for  a  period  of  one  month  after  having  given  such  notice; 
and  any  person  guilty  of  a  contravention  or  of  non-compliance  with 
this  provision  shall  be  liable  on  summary  conviction  to  a  fine  not 
exceeding  one  hundred  pounds,  or  to  imprisonment  for  a  term  not 
exceeding  three  months,  or  to  both. 

(3)  This  section  shall  not  apply  to  any  structure  which  is  occupied 
as  a  dwelling-house  by  any  person  other  than  a  person  employed  as 
the  caretaker  thereof  or  his  family. 


Transfer 
of  ancient 
monu- 
ments be- 
tween local 
authorities 
and  Com- 
missioners 
of  Works. 


General 
powers  of 
local  au- 
thorities 
with  re- 
spect to 
preserva- 
tion  of 
ancient 
monu- 
ments. 


Notice  to 
be  given 
by  owners 
of  certain 
monu- 
ments. 


438 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


Public 
access  to 

ancient 

monu- 
ments. 


Penalty 
for  injur- 
ing ancient 

monu- 
ment* 


Public  Access  to  Monuments  and  Penalty  for  Injuring  Monumen 

13. — The  public  shall  have  access  to  any  monument  of  which  tl 
Commissioners  of  Works  or  a  local  authority  are  the  owners  < 
guardians  at  such  times  and  under  such  regulations  as  may  from  tin 
to  time  be  prescribed  by  the  Commissioners  or  local  authority: 
Provided  that— 

(a)  this  section  shall  not  apply  to  any  monument  of  which  tf 
Commissioners  or  a  local  authority  have  been  constitute 
the  guardians  before  the  commencement  of  this  Act,  exce] 
in  cases  where  the  consent  of  the  owner  has  been  given  1 
the  public  having  access  to  the  monument  either  by  the  dee 
constituting  the  Commissioners  or  local  authority  the  guarc 
ians  or  otherwise;  and 

(&)  Where  the   deed   constituting  the   Commissioners  or   loc 

authority  the  guardians  of  the  monument,  in  the  case  of 

deed  executed  after  the  commencement  of  this  Act,  so  pr< 

vides,   the  public  shall   not  have  access  to  the  monumei 

without  the  consent  of  the  owner  of  the  monument. 

14. — (i)   If  any  person  injures  or  defaces  any  monument  of  whic 

the  Commissioners  of  Works  or  a  local  authority  are  the  owners  t 

guardians,  or  which  is  the  subject  of  a  Preservation  Order,  or  1 

which  this  section  applies  by  virtue  of  an  Order  in  Council  mac 

thereunder,  that  person  shall,  on  summary  conviction,  be  liable  eitht 

to  a  fine  not  exceeding  five  pounds,  and,  in  addition  to  the  fine,  1 

pay  such  sums  as  the  court  by  whom  he  is  tried  think  just  for  th 

purpose  of  repairing  any  damages  caused  by  him,  or  to  imprisor 

ment  with  or  without  hard  labour  for  a  term  not  exceeding  or 

month. 

(2)  In  England,  any  person  convicted  of  an  offence  under  th 
Act  may  appeal  to  quarter  sessions  in  manner  provided  by  the  Sun 
mary  Jurisdiction  Acts. 

(3)  The  owner  of  an  ancient  monument  shall  not  be  punishabl 
under  this  section  in  respect  of  any  act  which  he  may  do  to  th 
monument,  except  in  cases  where  the  Commissioners  of  Works  c 
the  local  authority  have  been  constituted  guardians  of  the  monumen 
and  in  that  case  he  may  be  dealt  with  as  if  he  were  not  the  owne 

(4)  His  Majesty  may,  by  Order  in  Council,  declare  that  th 
section  shall  apply  to  any  monument  specified  in  the  Order  whic 
appears  to  His  Majesty  to  be  an  ancient  monument  within  the  mear 
ing  of  the  Act,  and  on  any  such  Order  being  made  this  section  sha 
apply  accordingly. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY 


439 


Ancient  Monuments  Board  and  Inspectors 

15. — (i)  The  Commissioners  of  Works  shall  constitute  an  Advis- 
ory Board  under  the  name  of  the  Ancient  Monuments  Board,  consist- 
ing of  members  representing  the  bodies  named  in  the  First  Schedule  to 
this  Act,  and  such  other  members  as  the  Commissioners  of  Works 
may  appoint;  and  may,  if  and  when  they  think  it  desirable  to  do  so, 
constitute  separate  advisory  boards  for  Scotland  and  Wales,  and,  in 
such  case,  the  obligation  to  appoint  members  representing  the  bodies 
named  in  the  First  Schedule  of  this  Act  shall,  so  far  as  those  bodies 
are  bodies  whose  activities  are  confined  to  England,  Scotland,  or 
Wales,  be  construed  distributively. 

(2)  His   Majesty   may,   by   Order  in  Council,   alter   the   First 
Schedule  to  this  Act. 

(3)  The  Ancient  Monuments  Board  may,  if  so  requested  by  the 
owner  of  an  ancient  monument,  give  advice,  free  of  charge,  except 
for  out-of-pocket  expenses,  with  reference  to  the  treatment  thereof. 

16. — (i)  The  Commissioners  of  Works,  with  the  consent  of  the 
Treasury,  shall  appoint  one  or  more  inspectors  of  ancient  monu- 
ments, and  it  shall  be  the  duty  of  those  inspectors  to  report  to  the 
Commissioners  of  Works  on  the  condition  of  ancient  monuments  and 
on  the  best  mode  of  preserving  them. 

(2)  There  shall  be  paid,  out  of  moneys  provided  by  Parliament, 
to  any  inspectors  so  appointed,  such  remuneration  and  allowance  for 
expenses  as  may  be  determined  by  the  Treasury. 

17. — (i)  The  Commissioners  of  Works  may,  if  they  think  fit,  give 
advice  with  reference  to  the  treatment  of  any  ancient  monument,  and 
shall,  as  and  when  required,  give  that  advice  with  reference  to  the 
treatment  of  any  monument  which  is  placed  under  their  protection  by 
virtue  of  a  Preservation  Order. 

(2)  The  Commissioners  of  Works  may  also,  if  in  their  opinion 
it  is  advisable,  superintend  any  work  in  connection  with  any  ancient 
monument  if  invited  to  do  so  by  the  owner,  and  shall  superintend 
any  such  work,  whether  required  to  do  so  by  the  owner  or  not,  in 
connection  with  any  monument  which  is  placed  under  their  protection 
by  virtue  of  a  Preservation  Order  if  in  their  opinion  it  is  advisable. 

(3)  Any  such  advice  and  superintendence  shall  be  given  free  of 
charge,  except  that  a  charge  may  be  made  for  out-of-pocket  expenses 
in  the  case  of  monuments  which  are  not  placed  under  the  protection 
of  the  Commissioners  by  virtue  of  a  Preservation  Order. 

Miscellaneous 

18.  Where  it  appears  to  the  council  of  a  borough  or  a  district, 
which  expression  in  this  Act  shall  include  the  Common  Council  of  the 


Ancient 
Monu- 
ments 
Board. 


Power  of 
councils  to 
make  bye- 
laws  regu- 
lating ad- 
vertise- 
ments. 7, 
Edw.  7.  c. 


Incorpora- 
tion of 
Commis- 
sioners of 
Works  for 
purposes 
of  Act,  ete 


Local  au- 
thorities. 


Definition 
of  ancient 
monu- 
ment. 


>  * 
rm, 


46 


7J 


440 

City  of  London,  that  the  erection  of  buildings  of  a  style  of  architec- 
ture in  harmony  with  other  buildings  of  artistic  merit  existing  in  the 
locality  is  impeded  in  consequence  of  any  byelaws  with  respect  to  new 
streets  or  buildings  in  force  in  the  borough  or  district,  the  council  may, 
with  the  consent  of  the  Local  Government  Board,  relax  the  byelaws  so 
far  as  may  be  necessary  to  allow  the  erection  of  such  buildings,  pro- 
vided that  the  council  is  satisfied  that  such  buildings  can  be  erected 
with  due  regard  to  safety  from  fire  and  to  sanitation:  Provided  also 
that  no  byelaws  in  force  in  the  City  of  London  shall  be  relaxed  under 
this  section  such  as  are  administered  by  the  Common  Council  of  the 
City  of  London. 

19.  The  Advertisements  Regulation  Act,  1907,**  shall  be  construed 
as  if  the  powers  of  local  authority,  as  defined  by  that  Act,  included 
a  power  to  make  byelaws  prohibiting  or  restricting  the  display  of 
advertisements  or  notices  of  such  a  nature  or  in  such  a  manner  as 
to  be  detrimental  to  the  amenities  of  any  ancient  monument  specified 
in  the  byelaw.  Any  power  to  make  byelaws  given  by  this  section 
shall  be  in  addition  to,  and  not  in  derogation  of,  the  powers  to  make 
byelaws  given  by  the  Advertisements  Regulation  Act,  1907,  or  by  any 
other  Act. 

20. — (i)  For  the  purposes  of  this  Act,  the  Commissioners  of 
Works  shall  be  a  body  corporate  by  that  name  and  shall  have  per- 
petual succession  and  a  common  seal,  and  may  acquire  by  gift,  will 
or  otherwise,  and  hold  without  license  in  mortmain,  any  land  or  estate 
or  interest  in  land. 

(2)  Any  conveyance,  appointment,  devise  or  bequest  of  land 
or  any  estate  or  interest  in  land  under  this  Act  to  the  Commissioners 
of  Works  or  a  local  authority  shall  not  be  deemed  to  be  a  convey- 
ance, appointment,  devise  or  bequest  to  a  charitable  use  within  the 
meaning  of  the  Acts  relating  to  charitable  uses. 

21. —  (i)  The  council  of  every  county  and  borough  and  the  Com- 
mon Council  of  the  City  of  London  shall  be  a  local  authority  within 
the  meaning  of  this  Act. 

*  (2)     Expenses  of  local  authority  under  this  Act,  out  of  what 
public  fund  payable,  etc. 

22.  In  this  Act  the  expression  "monument"  includes  any  structure 
or  erection,  other  than  ecclesiastical  building  which  is  for  the  time 
being  used  for  ecclesiastical  purposes;  and  the  expression  "ancient 
monument"  includes  any  monument  specified  in  the  schedule  to  the 
Ancient  Monuments  Protection  Act,  1882,  and  any  other  monuments 
or  things  winch,  in  the  opinion  of  the  Commissioners  of  Works,  are 
of  a  like  character,  and  any  monument  or  part  or  remains  of  a  monu- 
ment, the  preservation  of  which  is  a  matter  of  public  interest  by 

*  Summarized. 
"See  pp.  420,  441. 


PLANNING  FOR  THE  PROMOTION  OF  BEAUTY 


441 


reason  of  the  historic,  architectural,  traditional,  artistic,  or  archaeo- 
logical interest  attaching  thereto,  and  the  site  of  any  such  monument, 
or  of  any  remains  thereof;  and  any  part  of  the  adjoining  land  which 
may  be  required  for  the  purpose  of  fencing,  covering  in,  or  other- 
wise preserving  the  monument  from  injury,  and  also  includes  the 
means  of  access  thereto. 

*  23. —  (i)     Reports,  to  whom  made,  etc. 
(2)     Application  to  Scotland. 

*  24.    Repeals. 

25. — (i)    This  Act  may  be  cited  as  the  Ancient  Monuments  Con- 
solidation and  Amendment  Act,   1913. 

(2)     This  Act  shall  not  apply  to  Ireland. 


Repeal 

Short 
title  and 
application. 


FIRST   SCHEDULE 

The  Royal  Commission  on  Historic  Monuments  in  England. 

The  Royal  Commission  on  Historic  Monuments  in  Scotland. 

The  Royal  Commission  on  Historic  Monuments  in  Wales. 

The  Society  of  Antiquaries  of  London. 

The  Society  of  Antiquaries  of  Scotland. 

The  Royal  Academy  of  Arts. 

The  Royal  Institute  of  British  Architects. 

The  Trustees  of  the  British  Museum. 

The  Board  of  Education. 


No.  4.    THE  ENGLISH  ADVERTISEMENTS  REGULATION  ACT,  1907** 

An  Act  to  authorize  Local  Authorities  to  make  Byelaws  respecting 
the  Exhibition  of  Advertisements. 

i. — This  Act  may  be  cited  as  the  Advertisements  Regulation  Act, 
1907. 

2. — Any  local  authority  may  make  byelaws — 

(1)  For   the    regulation   and   control   of   hoardings   and   similar 
structures   used   for  the   purpose   of   advertising   when  they   exceed 
twelve  feet  in  height : 

(2)  For  regulating,  restricting,  or  preventing  the  exhibition  of 
advertisements  in  such  places  and  in  such  manner,  or  by  such  means, 
as  to  affect  injuriously  the  amenities  of  a  public  park  or  pleasure 
promenade,  or  to  disfigure  the  natural  beauty  of  a  landscape : 
Provided  that  a  local  authority  in  making  byelaws  under  this  section 
shall  provide  for  the  exemption  from  the  operation  of  such  byelaws 

*  Summarized. 

"  Referred  to  in  sec.  15  of  the  act. 

W7  Edward  VII,  ch.  27. 


Short 
title. 


Local  au- 
thorities 
to  have 
power  to 
make  bye- 
laws  for 
regulation 
of  adver- 
tisements. 


442 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


ByeUws  to 
b«  con- 
firmed by 
Secretary 
of  State. 


Expense* 

Power* 
of  Act  to 
be  in  addi- 
tion to  any 
existing 
power*. 


of  any  hoardings  and  similar  structures  in  use  for  advertising  pi 
poses  at  the  time  of  the  making  of  the  byelaws,  and  of  any  adverti 
ments  exhibited  at  that  time,  for  such  period,  not  being  less  than  f 
years  from  that  time,  as  they  may  think  fit. 

3. — (i)  A  byelaw  made  under  this  Act  shall  not  have  a 
effect  until  confirmed  by  the  Secretary  of  State,  and  shall  not  be 
confirmed  until  at  least  thirty  days  after  the  local  authority  have  pi 
lished  it  in  such  manner  as  the  Secretary  of  State  may  by  general 
special  order  direct. 

(2)  The  Secretary  of  State  shall,  before  confirming  any  byels 
consider  any  objections  to  it  which  may  be  addressed  to  him  by  p 
sons  affected  or  likely  to  be  affected  thereby. 

(3)  The  Secretary  of  State  may,  before  confirming  any  byels 
order  that  a  local  inquiry  be  held  with  respect  to  the  byelaw  or  w 
respect  to  any  objections  thereto.     The  person  holding  any  such 
quiry  shall  receive  such  remuneration  as  the  Secretary  of  State  rr 
determine,  and  that  remuneration  and  the  expenses  of  the  local  inqu 
shall  be  paid  by  the  local  authority  making  the  byelaw. 

(4)  Byelaws  made  under  this  Act  may  apply  either  to  the  wh 
area  of  the  local  authority,  or  to  any  specified  part  thereof. 

(5)  Byelaws  made  by  a  county  council  shall  not  be  of  any  foi 
or  effect  within  any  borough  or  urban  district  the  council  of  whi 
is  a  local  authority  under  this  Act. 

(6)  The  production  of  a  copy  of  any  byelaw  certified  by  a  p< 
son  purporting  to  be  the  clerk  of  the  local  authority  to  be  a  true  cc 
shall,  until  the  contrary  is  proved,  be  evidence  of  the  byelaw  and 
the  due  making  thereof,  and,  if  it  is  so  stated  in  the  certificate,  of  1 
byelaw  having  been  duly  confirmed. 

*  4. — Expenses  incurred  by  local  authority  in  carrying  act  ii 
effect,  out  of  what  public  fund  paid,  etc. 

5. — The  powers  and  provisions  of  this  Act  shall  be  deemed  to 
in  addition  to  and  not  in  derogation  of  any  powers  and  provisions 
any  local  Act,  and  any  powers  of  making  byelaws  under  any  gene 
Act  and  any  such  powers  and  provisions  may  be  exercised  a 
enforced  in  the  same  manner  as  if  this  Act  had  not  been  passed. 

*  6.     Application  to  Scotland. 

*  7.     Definition  of  "local  authority." 

*8-io.     Enforcement,  application  to  Ireland,  and  penalties. 

*  Summarized. 


PART  VII 
CITY  PLANNING  ADMINISTRATION 

CHAPTER  I. 

PLANNING  ADMINISTRATION  IN  ITALY, 
SWEDEN  AND  GERMANY 

Importance  of  Administration. — To  the  average  citizen 
the  only  real  test  of 'a  principle  is  whether  it  works  or  not. 
Logically  this  may  not  always  be  fair;  the  principle  may  be 
correct,  the  means  of  applying  it,  faulty.  The  average  citizen 
will  have  none  of  such  fine  spun  distinctions.  To  get  his  vote 
you  must  "show  him,"  and  the  only  way  to  accomplish  it  is  to 
"do  the  job."  Thus  administration,  important  in  all  practical 
affairs,  is  especially  so  in  matters  like  city  planning,  where 
political  support  for  a  new  principle  is  necessary  and  success  is 
dependent  upon  votes.  If  city  planning,  when  introduced  in 
any  community,  is  badly  administered  and  proves  a  failure,  it 
will  be  a  long  time  before  that  community,  whatever  methods 
of  applying  it  be  proposed,  will  give  it  a  new  trial.  The  previ- 
ous parts  of  this  treatise  have  been  taken  up  with  the  substance 
of  city  planning  law;  this  last  part  is  concerned  with  the  no  less 
important  matter  of  its  administration. 

Importance  of  Foreign  Administration  to  Us. — In  the 
previous  parts  of  this  work,  devoted  to  the  presentation  of  the 
substance  of  city  planning  law  in  the  United  States,  foreign 
legislation  has  been  freely  cited,  and  the  same  free  use  will  be 
made  of  it  in  this  last  part  concerned  with  its  administration. 
To  us  in  this  country  the  study  of  foreign  methods  of  city 
planning  in  connection  with  our  own,  is  perhaps  especially  im- 

443 


444  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

portant,  both  because  city  planning  is  much  newer  here  than 
Europe  and  administrative  methods  are  of  slow  growth,  a 
because  political  administration  is  one  of  the  things  in  wh 
we  have  been  least  successful.  That  we  shall  anywhere  fi 
procedure  ready  made,  which  we  can  with  advantage  adopt, 
not  probable.  Administrative  methods  are  in  no  small  measi 
dependent  on  local  conditions  and  the  institutions  of  which  tl 
form  a  part.  The  study  of  foreign  institutions  may,  howev 
bring  home  to  us  the  necessity,  and  even  suggest  the  substan 
of  amendments  to  our  own;  and — what  is  perhaps  even  m< 
important  in  our  country,  where  city  planning  legislation 
still  too  recent  to  be  judged  altogether  by  its  results — these  f< 
eign  institutions  may  give  us  a  basis  for  passing  at  least  a  pi 
visional  judgment  on  the  aim  and  efficiency  of  our  metho 
City  planning  is  a  science ;  in  its  application  to  different  loa 
ties  it  varies  greatly,  but  everywhere  the  same  principles  h( 
true,  everywhere  the  main  aim  of  city  planning  is  the  same 
to  bring  about  a  unity  in  the  construction  of  the  given  co 
munity;  and  city  planning  administration  is  successful  in  pi 
portion  as  it  attains  this  aim. 

City  Planning  Law  of  Recent  Growth. — The  knowled 
and  practice  of  city  planning  goes  back  to  the  most  ancic 
times;  but  city  planning  law  is  a  recent  growth.  It  is  not  ur 
construction  by  royal  fiat  or  special  act  is  superseded  by  cc 
struction  in  accordance  with  rules  of  general  application, 
which  procedure  and  the  rights  of  all  parties  affected  are  fixe 
that  planning  law  as  now  known  can  come  into  existence. 

The  Italian  Planning  Law. — Perhaps  the  first  significa 
modern  law  attempting  to  deal  with  the  various  phases  of  ci 
planning  is  to  be  found  in  Italy.  This  law,  passed  in  1865,  cc 
tains  the  four  provisions  most  essential  in  a  city  planning  la 
— those  for  the  preparation  of  the  plan,  for  its  adoption  by  t 
public  authorities  as  the  rule  governing  future  construction,  f 
its  procection  against  the  encroachments  of  the  owners  of  t 
land  planned,  and  for  construction  in  due  time,  including  t 
taking  of  the  necessary  land.  The  plan  under  the  Italian  la 
however,  embraces  only  public  streets  and  squares,  leaving  o 
all  the  other  factors  of  city  construction  which  are  so  essenti 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY       445 

to  city  unity  and  efficiency.  Later  legislation,  however,  au- 
thorizes zoning. 

Origin  of  Planning  Legislation. — Planning  legislation  in 
Italy  is  an  outgrowth  or  special  application  of  the  law  of  con- 
demnation, or  "expropriation"  as  it  is  called  in  the  Roman  law 
countries  of  continental  Europe.  In  the  expropriation  of  land 
a  plan  is  required,  which  must  be  approved  by  an  executive  or 
legislative  decree  declaring  the  carrying  out  of  the  plan  to  be 
of  public  utility;  and  thereafter,  pending  the  completion  of  the 
taking,  the  owner,  although  still  in  possession  of  the  land  and 
entitled  to  make  any  other  use  of  it,  is  forbidden  to  do  anything 
which  will  render  that  taking  more  expensive.  The  fact  that 
the  interval,  in  city  planning  expropriation,  between  the  making 
of  the  plan  and  the  taking  is  much  longer  than  in  other  cases 
does  not  present  the  difficulties  to  them  that  it  does  to  us.  In 
Europe  while^the-actual  taking  of  property  must  in  all  cases 
be  paid  for,  compensation  for  the  infringement  of  property 
rights  is  left  more  to  the  conscience  and  good  judgment  of  the 
legislature-Aa4v-as!jadih_tisr  to  the  courts.  Since,  therefore, 
there  is  no  provision  in  the  city  planning  expropriation  law  for 
payment  for  this  lessening  of  the  former  rights  of  the  property 
owner,  but  on  the  contrary  an  express  statement  that  no  com- 
pensation is  due,  none  can  be  claimed,  nor  can  the  law  be  chal- 
lenged on  that  account.1  The  Italian  planning  law  is  chapters 
VI  and  VII  of  the  General  Expropriation  Law  of  June  25, 
1865, 2  and,  like  other  chapters  in  that  law,  is  dependent  upon 
provisions  in  other  partsjof  it.  The  statute  has  been  amended 
from  time  to  time,  but  in  essentials  it  is  the  same  as  it  was  in 
1865  when  first  passed. 

Regulation  and  Extension  Plans. — Under  the  Italian 
law,  "building"  plans  are  divided  into  "regulatory"  plans — 
i.  e.,  plans  of  the  lines  of  future  streets  and  squares  and  the 
change  in  the  lines  of  existing  streets  and  squares  in  the  present 
built-up  city — and  "extension"  plans,  or  plans  of  additions  to 
that  city.  Communes  with  a  population  of  10,000  or  over  are 
authorized  to  make  regulatory  plans,  and  communes  showing 

"See  p.   13. 
'No.  2359. 


446  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  necessity  of  enlarging  their  built-up  area  are  authorized 
make  extension  plans.    These  plans  the  communes  must  folk 
in  future  construction. 

Preparation  and  Adoption  of  Plan. — The  responsibili 
for  the  preparation  of  the  plan  rests  upon  the  mayor,  \vhc 
duty  it  is  to  present  it  to  the  communal  council  for  adoptic 
Before  acting  on  it  the  council  must  give  all  parties  in  inten 
an  opportunity  to  be  heard.  The  plan  is  then  transmitted 
the  council  of  state,  with  the  opinions  of  various  government 
and  technical  bodies  on  it  and  on  the  validity  of  any  objectio 
to  it.  The  plan  goes  into  effect  when  approved  by  royal  decn 
given  on  the  advice  of  the  council  of  state.  The  decree  is 
declaration  that  the  plan  is  of  public  utility.  The  plan,  wh 
approved,  remains  in  force  for  the  period  named  in  the  decn 
not  to  exceed  twenty-five  years ;  but  this  period  may  be  extend 
by  subsequent  decree.  The  plan  may  be  amended  in  the  sar 
way  as  adopted. 

Effect  of  Plan  on  Private  Property. — On  publication 
the  decree  the  plan  is  binding  upon  the  owners  of  private  pro 
erty  included  in  it,  and  all  subsequent  construction  by  the 
within  the  lines  of  streets  and  squares  as  indicated  on  the  pi 
is  forbidden  on  pain  of  demolition  of  the  structure  and  fine, 
all  other  respects  the  lands  continue  to  belong  to  their  owne 
until  the  municipality  begins  proceedings  actually  to  take  the 
portions  of  them  needed  for  the  public  works  planned.     I 
compensation  is  due  the  land  owners  except  for  the  taking 
the  land,  when  it  occurs.     In  this  connection  the  provision, 
another  chapter  of  the  expropriation  law,  should  be  noted, 
the  effect  that : 

Improvements  After  Notice  of  Plan. — 

"Chapter  IV,  Art.  43.  For  structural  and  cultural  improvemei 
no  compensation  will  be  made  [when  the  property  is  actually  take 
if,  in  view  of  the  time  when  they  were  undertaken,  or  any  oth 
circumstances,  it  is  shown  that  they  were  made  with  the  purpose 
obtaining  a  larger  compensation;  but  the  owner  retains  the  right 
remove  at  his  own  expense  the  materials  and  any  other  propel 
which  can  be  taken  away  without  injury  or  prejudice  to  the  work 
public  utility  which  is  to  be  executed." 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      447 

Swedish  Planning  Law  of  1874. — On  May  8,  1874, 
Sweden  passed  a  planning  law  which,  like  the  Italian  law,  pro- 
vided for  the  preparation,  adoption,  protection,  and  execution 
of  a  city  plan,  which,  however,  was  little  more  than  a  street 
plan.  This  was  superseded  in  some  respects  and  in  many  others 
supplemented  by  a  statute  adopted  August  31,  1907;  and  that 
statute  is  now  incorporated  as  the  first  of  the  many  chapters  of 
the  law  of  May  12,  igij? 

Beginnings  of  Modern  City  Planning  Law  in  Germany. 
— The  next  country  to  pass  legislation  significant  in  the  evolu- 
tion of  modern  city  planning  law  and  practice  was  Germany. 
This  legislation  is  of  importance  in  this  connection  chiefly  for 
the  care  with  which  it  has  been  developed  in  administration  and 
detail;  an  importance  much  increased  by  the  difference  in  the 
laws  of  the  different  states  and  the  resulting  increase  in  prece- 
dent and  experience  thus  furnished.  These  laws  date  from  the 
beginning  of  the  rapid  growth  of  German  cities  after  the  for- 
mation of  the  German  Empire.4 

Changes  in  Law  Since  the  War. — Since  the  war  the 
national,  and  most  of  the  state,  constitutions  in  Germany  have 
been  changed.  In  some  cases  these  changes  are  radical.  For 
instance,  the  new  national  constitution  gives  the  central  gov- 
ernment the  power  to  lay  down  the  principles  to  be  observed  by 
the  states  in  their  housing  legislation.  Prior  to  the  enactment 
of  these  new  fundamental  laws  the  former  governments  had  in 
a  few  cases  adopted  amendments  to  the  planning  law,  but  the 
new  governments,  as  a  rule,  have  been  too  busy  with  other 
matters  to  make  new  planning  laws.  In  so  far  as  the  older  leg- 
islation has  been  altered  by  either  the  old  or  the  new  govern- 
ments, these  changes  have  been  noted  in  this  work.  There  is 
no  reason  to  expect  that  the  building  and  planning  laws,  with 
which  the  Germans  were  reasonably  content,  will  be  changed 

'Slightly  amended  May  27,  1919;  see  also  the  government  circulars, 
No.  496,  of  August  i,  1919,  and  No.  684,  of  October  22,  1920. 

*  For  a  brief  but  most  significant  review  of  the  tendencies,  meaning 
and  effect  of  city  planning  law  and  practice  in  Germany  from  the  earliest 
times  to  the  present  day,  see  Gemeinwohl  und  Sondernutzen  im  Stadtebau, 
by  R.  Baumeister,  being  Stadtebauliche  Vortrdge,  edited  by  Brix  and 
Genzmer,  Vol.  VIII,  No.  IV,  Ernest  und  Sohn,  Berlin,  1918. 


448  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

more  rapidly  or  fundamentally  under  the  new  governments  thz 
they  would  have  been  under  the  old.  In  any  event  the  existir 
law,  useful  to  us  less,  perhaps,  as  a  rule  binding  upon  the  Ge 
man  people  than  as  a  body  of  precedent  and  experience,  w 
remain  worthy  our  careful  study. 

Planning  Jurisdiction  of  Empire  Within  States. — Tl 
German  Empire  was  a  federal  union  of  states  in  many  respec 
like  our  own  union.  In  general,  city  planning  was  a  matter  < 
state,  as  distinguished  from  Imperial,  concern,  and  there  fo 
under  state  jurisdiction.  Manufacturing,  however,  was 
some  respects  an  Imperial  matter,  and  was  regulated  by  -< 
Imperial  Industrial  Law.5  This  Imperial  statute  regulated  tl 
building  of  various  kinds  of  factories;  but  provided  for  its  ov 
execution  by  state  officials  or  local  functionaries  under  state  a 
thority,  and  allowed  them  to  pass  additional  and  more  stringe 
and  detailed  laws  and  regulations,  a  permission  of  which  tin 
made  free  use ;  and  thus  building  regulation  and  zoning  are 
fact  almost  entirely  matters  of  state  and  local  law  and  practic 
Other  city  planning  matters,  over  some  of  which  it  would  see 
that  the  Empire  might  have  exercised  jurisdiction  if  it  had  se< 
fit,  have  in  fact  been  left  entirely  to  the  separate  states.  In  th 
study  of  city  planning  law  in  Germany,  therefore,  it  is  the  la 
of  the  various  states,  and  the  local  ordinances  under  ther 
which  will  be  taken  up,  with  only  an  occasional  reference 
the  constitution  and  laws  of  the  nation. 

State  Planning  Jurisdiction. — Each  of  the  twenty-fr 
states  of  the  former  German  Empire,  in  planning  as  in  oth 
matters  wholly  or  largely  within  state  control,  had  the  pow 
to  pass  practically  such  legislation  as  it  saw  fit.  In  fact  the 
are  in  these  planning  laws  and  in  the  legal  systems  of  whi< 
they  form  a  part  many  important  differences,  but,  as  a  resi 
of  common  history,  language  and  environment  and  of  the  i 
fluence  of  the  states  upon  one  another,  they  are,  in  outline  ai 
general  principle,  much  the  same. 

Local  Self-Government  and  State  Control. — Throug 
out  Germany,  in  planning  as  in  other  local  matters,  there  is 
.re  of  local  self-government.    This  is  especially  tri 
rdnunt/';  see  p.  210,  note  I. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      449 

in  the  cities,  where  in  local  affairs  the  municipality  has  juris- 
diction unless  deprived  of  it,  instead  of,  as  in  this  country, 
only  when  conferred.  City  government  has  its  grave  defects 
in  Germany.  Before  the  war,  in  many  Prussian  cities,  under 
the  so-called  three  class  system  now  swept  away,  the  electors 
were  divided  into  three  groups,  each  paying  one-third  of  the 
municipal  taxes  and  electing  a  third  of  the  municipal  council. 
By  this  system  some  years  ago,  when  Essen  was  a  city  of  about 
350,000  inhabitants,  one-third  of  its  councilmen  was  elected 
by  four  voters  and  a  second  third  by  about  five  hundred.  In 
Prussia  and  a  number  of  other  German  states  the  law,  now  al- 
most universally  changed  in  this  respect,  generally  required 
that  one-half  of  the  council  should  be  householders,  the  non- 
householding  class  being  obliged  to  choose  householders  to  rep- 
resent it.  As  a  result  it  was  often  the  state  which,  for  reasons 
of  its  own,  no  doubt,  urged  municipal  reform,  in  the  interest 
of  the  more  humble  citizen,  upon  the  reluctant  city  authorities. 
Nevertheless  in  city  government  Germany  has  probably  been 
more  successful  than  in  any  other  part  of  the  field.  Here,  too, 
the  individual  citizen  has  displayed  an  initiative  and  independ- 
ence not  found  in  the  conduct  of  state  or  national  affairs. 

In  Germany,  however  (and  indeed  in  other  European  coun- 
tries, as  will  be  seen  later)  neither  local  self-government  nor 
state  control  have  quite  the  same  meaning  as  in  this  country. 
In  the  United  States  the  state  government  assigns  to  local  au- 
thorities certain  powers  which,  until  modified  or  withdrawn, 
they  employ  quite  independently  of  the  central  government ;  in 
Germany  the  state  exercises  a  very  considerable  amount  of 
supervision  and  control  over  most  if  not  all  local  action. 

Local  Self -Government  and  State  Control  in  Planning. 
— This  interrelation  of  state  and  local  authority  is  to  be  found 
in  planning  as  in  other  matters.  There  are  in  Germany  two 
types  of  planning  laws.  In  Prussia  and  a  few  other  states  the 
state  law  is  little  more  than  a  street  and  building  line  statute, 
building  and  housing  regulations  being  issued  by  or  for  the 
different  localities ;  6  while  in  Saxony,  Baden,  and  a  number  of 

8  See  however  the   Prussian   Housing  Law   on   p.   466  of   this   work. 


450          THE  LAW  OF  CITY  PLANNING  AND  ZONING 

other  states,  city  planning  is  a  part  of  a  state  building  la 
governing  the  construction,  use  and  inspection  of  structun 
laying  down  general  provisions  binding  throughout  the  sta 
except  as  locally  varied  or  added  to. 

Under  both  systems,  in  subdivisions  of  the  state  larger  th; 
the  self-governing  commune,  an  appointive  state  official,  wi 
whom  is  usually  associated  a  committee,  part  of  the  membersh 
of  which  is  elected  by  the  representative  body  of  the  provin 
or  district,  issues  ordinances  and  administers  the  law  for  t 
entire  district,  thus  doing  regional  planning,  and  regulating  t 
territory  just  beyond  city  limits  in  the  interest  of  both  city  ai 
country.  In  the  subdivisions  smaller  than  the  commune  t 
state  rules  as  well. 

In  the  communes  the  local  planning  authority  is  the  loc 
council,  and  its  executive,7  elected  by  it.  This  executive  is  al 
charged  with  the  duty  of  preparing  matters  for  the  consider 
tion  of  the  council  and  has  certain  powers  independent  of  it. 

German  Planning  Laws  Prior  to  1875. — In  city  pla 
ning,  partly  for  historical  reasons,  there  has  always  been 
Germany  less  home  rule  than  in  other  matters  generally  co 
sidered  local  in  their  nature.     Prior  to  1875,  according  to  t 
planning  laws  in  force  in  German  states,8  street  lines  were 
be  fixed  in  individual  cases  with  a  view  to  the  accommodate 
of  traffic,  and  building  regulations,  the  same  for  entire  admi 
istrative  districts,  issued  to  prevent  flimsy  construction.   The 
measures,  so  regarded,  are  for  the  preservation  of  the  pub 
safety  and  order,  which  in  Germany  has  always  been  treated 
a  state  duty,  to  be  executed  by  state  officials.     It  is  only  wi 
the  growth  of  the  conception  of  city  planning  as  a  provision  f 
many  phases  of  the  general  welfare  that  the  necessity  for 
general  plan  was  seen,  a  larger  share  in  its  preparation  giv 
to  the  local  authorities,  and  the  power  of  the  state  restricted 
that  of  supervision.     Such  laws,  in  contradistinction  to  t 

f  Together,  known  as  the  "Gentfindevorstand."  In  some  cities  t 
executive  is  an  upper  chamber  of  paid  experts  and  unpaid  laymen,  pi 
sided  over  by  the  mayor  or  Burgermeister ;  in  others  the  mayor  and  1 
assistants  constitute  the  executive.  The  mayor  is  elected  by  the  coun< 
and  his  election  must  be  ratified  by  the  state. 

*  In  some  cases,  however,  complete  city  plans  were  in  fact  adopti 
as  for  instance  in  Berlin  in  1856. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      4Si 

earlier  enactments,  may  be  called  modern  city  planning  legis- 
lation. Under  some  of  these  later  laws,  however,  the  state, 
acting  by  the  "building  police,"  retains  its  old  power  of  issuing 
local  building  ordinances,  which  now  include  zoning;  except 
that  the  consent  of  the  local  authorities  is  as  a  rule  also  re- 
quired. In  a  few  large  cities  the  state  appoints  special  "build- 
ing police,"  but  usually  confers  the  duty  of  acting  in  that  capa- 
city upon  the  executive  branch  of  the  local  council,  or  the 
biirgermeister ;  who  in  so  acting  must  obey  the  superior  state 
officers  and  carry  out  their  policies.  Throughout  the  laws,  as 
will  appear  when  their  provisions  are  given  in  more  detail,  there 
is  provision  for  state  supervision  and  control  of  subordinate 
state  and  local  officials. 

The  Prussian  Act  of  1875. — The  first  modern  planning 
law  in  Germany  was  passed  by  Prussia  July  2,  i875.9  This 
statute  was  of  the  street  and  building  line  type.  In  1918  Prus- 
sia enacted  a  measure  known  as  the  Prussian  Housing  Law  10 
for  the  purpose  of  amending  the  act  of  1875,  and  laying  down 
some  principles  for  the  enactment  of  local  building  statutes. 
The  act  of  1875  in  its  original  form  lacked  many  features  con- 
tained in  the  later  laws  of  the  other  states,  some  of  which  Prus- 
sia had  passed  as  independent  statutes,  some  of  which  were 
altogether  missing.  These  deficiencies  were  to  a  considerable 
extent  made  good  by  the  amendatory  parts  of  the  law  of  1918. 
Thus  the  act  of  1875  in  its  original  form  did  not  provide  for 
zone  condemnation,  for  which  resort  to  the  general  condemna- 
tion law,  requiring  a  royal  order,  was  necessary.  In  some  cases, 
until  I927,11  apparently  as  a  post  war  measure,  the  act  as 
amended  allows  it,  and  also  simplifies  its  procedure.  The  act  in 
its  original  form  did  not  authorize  replotting.  This  was  first 
provided  for  in  the  Prussian  city  of  Frankfort-on-the-Main 
by  the  Lex  Adickes,12  which  from  time  to  time  had  been  ex- 
tended to  other  cities  in  Prussia.  The  act  of  1875  as  now 
amended  permits  its  adoption  by  any  city  in  the  state.  The 
law  of  1875  in  its  original  form  does  not,  the  amended  law 

'Gesetz  Sammlung,   1875,  Nr.  8375. 
10Gesetz  Sammlung,  1918,  Nr.   11637   (28  March). 
"With  the  consent  of  the  minister  of  public  works. 
"See  p.  466. 


452  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

does,  authorize  the  condemnation  of  remnants.  The  law  of 
1875  in  its  original  form  was,  much  more  than  the  laws  in 
force  elsewhere  in  Germany,  uniform  and  rigid  in  its  require- 
ments with  regard  to  large  and  small  houses,  densely  settled 
and  more  rural  districts,  and  the  width  and  construction  of 
streets.  Perhaps  the  most  considerable  service  which  the  law 
of  1918  has  rendered  is  the  greater  differentiation  and  flexi- 
bility which  it  has  introduced  in  the  law  of  i875,13  that  law, 
in  the  main,  remaining  much  the  same  as  when  first  passed. 

Content  of  Plan. — The  law  of  1875  provides  for  the  prep- 
aration and  adoption  by  the  council  of  a  plan  of  street  lines  and 
building  lines  for  the  laying  out  and  change  of  streets  and 
squares  "in  accordance  with  the  public  needs ;"  to  which  the  law 
of  1918  adds  the  lines  for  small  gardens,  play  and  recreation 
grounds.  The  plan  does  not  embrace  parks,  land  for  housing 
or  land  to  be  acquired  in  pursuance  of  a  land  policy  or  other 
municipal  purpose,  such  as  harbors,  municipal  enterprises,  sites 
for  municipal  buildings,  etc.  Such  land  may  in  some  cases  be 
taken  by  condemnation,  by  virtue  of  a  special  authorization 
from  the  state  to  make  use  of  the  general  state  condemnation 
law,  in  others  it  must  be  obtained  by  private  purchase;  while 
the  land  needed  to  carry  out  the  plan  may  be  condemned  with- 
out special  authority,  under  the  planning  act  itself.  The  plan 
may  be  for  single  streets  or  parts  of  streets  or  may  be  a  "build- 
ing plan"  for  larger  areas.  It  does  not  include  building  or 
zone  regulations,  which  are  issued  by  the  state  building  police 
— or,  to  be  more  accurate,  sometimes  by  the  state  police, 
sometimes  by  the  local  police,  acting  under  state  authority  and 
subject  to  state  supervision  and  control;  which  makes  them 
in  effect  a  state  body. 

Preparation  of  Plan. — The  plan  is  prepared,  for  the  con- 
sideration of  the  council,  by  the  executive  branch,  the  prelim- 
inary work  being  usually  done  by  a  committee  of  that  branch, 
consisting  of  an  expert  member  as  chairman,  lay  members,  and 
sometimes  members  of  the  council  and  outside  citizens;  or  if 
the  mayor  and  his  assistants  constitute  the  executive  14  this 

"  See  p.  466. 

14  See  p.  450,  note  i. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY       453 

work  may  be  done  by  them ;  a  city  department  corresponding  to 
our  street  department,  attending  to  the  routine. 

Adoption  of  Plan. — Before  the  council  can  act  on  the  plan 
it  must  obtain  the  consent  of  the  local  state  police  authorities, 
who  can  withhold  consent  only  when  the  police  interests  in  their 
charge  seem  to  them  to  require  it ;  and  from  an  adverse  decision 
by  them  the  local  authorities  may  appeal  to  the  superior  state 
authorities.  If  the  plan  affects  a  fortress,  or  there  are  within 
its  limits  public  streams,  state  roads,  state  railways,  etc.,  the 
local  state  police  shall  see  that  the  authorities  concerned  are 
given  a  reasonable  opportunity  to  safeguard  their  interests. 
The  executive  branch  shall  then  make  the  plan  public,  or,  if  it 
affects  only  single  pieces  of  land,  notify  the  owners.  If  objec- 
tions are  raised  and  are  not  settled  by  negotiations  between  the 
local  authorities  and  the  objectors,  they  shall  be  decided  by  the 
superior  state  authorities.15 

Obligation  to  Adopt  Plan. — If  there  are  no  objections, 
or  when  they  are  finally  disposed  of,  the  council  shall  take  final 
action  on  the  plan  and  make  it  public.  If  in  consequence  of 
destruction  by  fire  or  other  catastrophe,  considerable  portions 
of  a  city  or  village  are  in  need  of  reconstruction,  the  commune 
shall,  in  so  far  as  necessary,  proceed  to  the  adoption  of  a  plan 
with  all  possible  speed. 

The  local  state  police  authorities  may  require  the  adoption 
of  street  and  buildings  lines  when  the  interests  in  their  charge 
render  it  necessary.  There  are  appeals  from  their  action. 

Effect  of  Adoption  of  Plan  on  Land  Planned. — After 
the  plan  is  finally  adopted  and  made  public,  the  law  provides 
that,  for  its  protection,  the  police  authorities  may  refuse  per- 
mits for  the  erection  of  buildings  on  those  portions  of  lots 
destined  for  public  use;  and  the  courts  have  decided  that,  before 
such  final  action  in  all  its  stages  has  occurred,  the  permit  may 
be  denied  at  any  time  after  the  local  authorities  have  decided 
upon  definite  street  or  building  lines.  In  practice  improve- 
ments of  a  permanent  nature,  that  would  make  the  taking  of 
the  land,  when  it  occurs,  more  expensive,  are  not  permitted,  but 

"Or,   in   communities   of   less   than   10,000  inhabitants,   a   subordinate 
authority   (the  "Kreisausschuss")   in  their  place. 


454  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  customary  projections,  overhangs,  etc.,  and  temporary 
structures,  are  allowed,  and  the  owner  may  freely  use  his  land 
for  agricultural  and  similar  purposes. 

Compensation  to  Land  Owner. — Under  the  general  ex- 
propriation law  indemnity  is  due  both  for  the  taking  of  prop- 
erty and  for  restrictions  upon  its  use ;  but  the  city  planning  law 
usually  grants  no  compensation  for  restrictions.  When  the 
plan  is  adopted  the  owner  ceases  to  be  able  to  employ  his  prop- 
erty in  ways  which  will  interfere  with  the  ultimate  consumma- 
tion of  the  plan;  but  he  is  paid  only  for  his  land  when  it  is 
taken.  Under  the  plan  a  building  line  may  be  imposed  upon  an 
owner's  land,  preventing  him  from  using  it  in  some  ways  per- 
missible before:  but  he  can  claim  compensation  only  if,  and  at 
the  time  when,  in  consequence,  buildings  are  torn  down.  In 
Germany  such  restrictions  incidental  to  planning  in  the  general 
interest  and  to  the  transformation  of  agricultural  into  building 
land,  to  the  owner's  profit,  give  rise  to  no  claim  for  compensa- 
tion. 

To  the  rule  that  no  compensation  is  due  in  city  planning 
expropriation  for  restrictions  upon  property,  but  only  for  its 
appropriation  at  the  time  it  occurs,  there  are  exceptions  inter- 
esting to  us  chiefly  as  exemplifications  of  the  rule  just  stated. 
By  exception  compensation  is  made — 

When  the  building  line  strikes  existing  buildings  and  the 
land  is  cleared  of  buildings  to  the  new  line ;  in  which  case  not 
only  the  buildings  but  the  land  are  at  once  paid  for. 

When  the  lines  of  a  proposed  street  strike  a  vacant  lot 
on  an  existing  street,  finished  and  open  for  travel,  abutting 
on  which  buildings  may  therefore  lawfully  be  erected,  and 
buildings  are  thereupon  erected  on  this  building  lot  but  in 
the  new  line,  thus  proving  beyond  doubt  that  the  new  street 
is  ready  for  building;  in  which  case  that  portion  of  the  lot 
which  the  owner  cannot  use  for  building  purposes,  because 
destined  for  street  use,  must  at  once  be  paid  for. 

In  these  cases  it  will  be  seen  that  it  is  building  value  which 
is  taken,  and  which  is  therefore  paid  for  when  taken.  The 
owner  may  also  demand  the  taking  of  the  entire  lot  when  by 
the  building  or  street  line  it  is  either  wholly  or  to  such  an  ex- 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      455 

tent  appropriated  that  the  rest  of  the  lot  under  the  building 
police  rules  of  the  locality  is  no  longer  suitable  for  building 
purposes. 

Execution  of  Plan. — In  Germany,  as  in  Italy  and  other 
countries  of  continental  Europe,  while  special  authority  from 
the  state  is  necessary  in  each  case  for  expropriation  under  the 
general  law,  in  city  planning  expropriation  the  planning  law  is 
a  general  authority  to  take  any  interest  in  land  devoted,  by  a 
duly  adopted  plan,  to  future  public  use.  The  plan  remains 
valid  indefinitely,  and  the  commune  has  the  right  to  condemn 
property  in  accordance  with  it  at  such  time  as  it  sees  fit.  In 
1918  Prussia  passed  a  law  also  allowing  communes  until  De- 
cember 31,  1926,  with  the  permission  of  the  Minister  of  Public 
Works,  to  expropriate  land  for  "moderate  and  small  size 
dwellings,"  which  may  be,  and  in  the  past  usually  have  been, 
apartments  in  tenement  houses.  As  already  stated,  the  Ger- 
man commune  has  always  had  the  right  to  buy  land  freely  for 
almost  any  purpose  which  it  considers  desirable;  and  for  some 
purposes  may  obtain  from  the  state  special  authority  to  con- 
demn. 

Payment  for  Improvements. — By  local  statute  the  owner 
may  be  made  liable  for  one  half  the  cost  of  acquiring  the  land 
for  that  portion  of  a  street  of  not  more  than  26  meters  in 
width  upon  which  he  abuts;  of  constructing,  draining,  and 
lighting  it,  and  of  its  maintenance  for  not  more  than  five  years ; 
the  excess  in  the  case  of  wider  streets  being  borne  by  the  com- 
munity as  a  whole.  The  owner  is  obliged  to  make  payment, 
without  interest,  at  the  time  when  he  builds  upon  his  land.  The 
street  may  be  built  by  the  public  authorities  or  by  a  land  owner 
as  contractor,  who  may  recover  the  cost,  without  interest,  from 
the  abutters  when  and  to  the  extent  that  the  commune  would 
have  been  entitled  to  recover  from  them  if  it  had  constructed  the 
street. 

Control  over  Undeveloped  Area. — In  Prussia,  except 
for  the  general  obligation  to  care  for  the  best  interests  of  the 
public,  the  commune  is  under  no  obligation  in  any  case  to  con- 
struct streets.  The  planning  law  of  1875  16  authorizes  the  com- 

18  Sec.  12, 


456  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

mime  by  local  statute  to  forbid  the  erection  of  houses  on  streets 
which  are  not  finished  to  the  satisfaction  of  the  building  police. 
Streets,  under  this  provision  of  the  planning  law,  include  both 
public  and  private  thoroughfares,  and  projected  thoroughfares; 
but,  outside  planned  and  settled  areas,  where  there  cannot  be 
said  to  be  any  prospect  of  street  construction,  the  building  of 
houses  cannot  thus  be  forbidden.  Under  another  statute,  how- 
ever,17 in  certain  provinces  of  Prussia,  the  erection  of  dwelling 
houses  outside  settled  areas  is  allowed  only  on  permit,  and  in 
cities  and  villages  this  is  interpreted  to  mean  that*  the  permit  is 
required  for  houses  outside  the  area  in  which  buildings,  with 
their  courts  and  yards,  are  contiguous.18  The  Prussian  Hous- 
ing Law  of  1918  l9  also  provides  that,  outside  planned  and 
settled  areas,  building  development  may  be  limited  to  detached 
houses  not  more  than  two  stories  high. 

For  these  restrictions  upon  his  rights  the  land  owner  re- 
ceives no  compensation.  These  statutes,  together  with  the  pro- 
visions empowering  the  commune  to  plan  any  suitable  area  at 
any  time  when  there  can  be  said  to  be  any  reason  to  do  so,  give 
the  authorities  complete  control  over  the  development  of  both 
planned  and  unplanned  areas. 

In  practice  new  streets,  although  often  planned  far  in  ad- 
vance of  present  needs,  are  usually  constructed  only  as  immedi- 
ately needed  in  the  narrow  belt  of  open  country  just  beyond 
the  point  where  the  solidly  built  city  stops ;  and  the  erection  of 
new  houses  is  permitted  on  these  streets  only  when  they  are 
contiguous  to  the  existing  houses  of  the  old  city  and  to  each 
other,  or  it  is  evident  that  the  intervals  will  not  be  wide  or  of 
long  duration.  The  construction,  on  streets  provided  at  great 
expense  with  all  the  improvements  and  utilities  and  entitled  to 
all  the  benefits  of  urban  administration,  of  buildings  with 
more  and  more  vacant  lots  between  them  until  the  city  fades 

"  The  so-called  slnsifdlunysycsets  or  Settlement  Law.  of  August  10, 
1904,  in  the  Cesets  Sammlung  or  Collection  of  Laws  of  Prussia  for  1904, 
p.  227. 

"Baltz,  Polueirtckt,  Berlin,  1910,  p.  164.  and  the  decisions  of  the 
Prussian  Oberverwaltungsgericht  or  highest  administrative  court,  cited 
in  note  6;  especially  vol.  9,  p.  340;  voL  28,  p.  382;  vol.  48,  p.  404,  Sec 
also  vol.  58,  pp.  254  and  262. 

"  Art.  4,  see.  i,  par.  i. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      457 

out  into  the  open  country,  and  especially  the  transformation 
of  useful  agricultural  land  into  city  "additions"  long  before 
they  are  needed,  so  common  here,  rarely  occur  in  Germany. 
The  Germans  point  out  that,  under  a  system  permitting  such 
developments,  the  carrying  charges  and  expenses  of  operation 
of  improvements  used  far  short  of  capacity  are  greatly  aug- 
mented and  the  costs  of  police,  fire  protection  and  city  admin- 
istration generally,  unduly  increased.  As  an  effort  to  shorten 
the  time  and  thus  lessen  perhaps  the  greatest  waste  in  convert- 
ing acreage  into  lots  with  needed  buildings  actually  on  them, 
the  Prussian  law  and  practice  is  well  worthy  of  study.  It  has 
by  no  means,  however,  commended  itself  altogether  to  German 
city  planners  and  social  economists,  some  of  whom  think  that 
this  limitation  of  the  supply  of  building  land  raises  its  price,  to 
the  profit  of  the  land  owner,  instead  of  reducing  the  cost  of 
building  land  and  rents.  The  Prussian  law  enables  the  au- 
thorities to  guide  the  development  of  their  cities  in  the  direc- 
tions they  think  desirable,  and  sometimes  to  buy  outlying  land 
and  direct  growth  toward  it,  to  the  convenience  and  profit  of 
the  community. 

Planning  Laws  of  Other  German  States. — Always  pre- 
eminent among  the  German  states,  Prussia  has  by  no  means 
always  been  in  the  lead.  In  city  planning  legislation  Prussia 
was  the  pioneer,  and  her  statute,  supplemented  by  decisions, 
rulings,  and  subsequent  statutes,  has  had  great  influence 
throughout  Germany;  but  it  is  generally  admitted  that  in  many 
details  the  laws  of  the  other  states  contain  improvements  on  the 
law  of  Prussia. 

Saxon  Planning  Law  of  1900-1904. — The  Saxon  statute 
is  of  the  general  building,  as  distinguished  from  the  street  and 
building  line,  type.  It  covers  the  entire  field  of  building  con- 
struction, including  not  only  the  choice  of  materials  and 
methods  of  building,  minima  of  light  and  air  and  maximum 
amount  of  lot  covered,  and  maximum  of  height,  but  also  the 
conversion  of  acreage  into  building  lots,  planning  for  the  future 
city,  and  replanning  and  zone  condemnation  to  remedy  defects 
in  existing  city  construction.  The  law  also  fixes  the  powers 
of  state  and  local  authorities,  giving  localities  the  right  to  vary 


458  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

or  to  add  to  state-wide  provisions,  and  subjecting  them  to  the 
control,  to  a  certain  extent,  of  the  state.  The  general  features 
of  the  law  and  a  few  of  its  details  in  which  it  is  superior  to 
the  Prussian  system  will  be  examined,  and  minor  details  and 
features  in  which  it  is  sufficiently  like  the  Prussian  statute  to 
make  a  statement  of  particulars  unnecessary  here,  will  be  passed 
over.  In  connection  with  the  summary  of  the  Saxon  law  some 
of  the  provisions  of  the  laws  of  other  German  states  will  be 
mentioned. 

General  Provisions  of  Saxon  Law. — The  general  pro- 
visions of  the  law  have  two  functions ;  first  to  lay  down  general 
principles,  for  the  guidance  of  local  authorities,  so  that  the 
lay  out  of  blocks  and  streets  shall  be  adapted  to  the  topography, 
that  abundant  sun  for  living  rooms  shall  be  assured,  that  the 
width  of  streets  shall  be  fixed  in  accordance  with  the  needs  of 
traffic,  and  that  in  zoning  the  hitherto  prevailing  character  of 
the  locality  as  well  as  the  existing  needs  shall  be  considered; 
and  second,  to  make  certain  definite  provisions,  such  as  those 
for  the  limitation  of  the  maximum  number  of  stories  in  coun- 
try places  and  villa  sections  of  cities  to  at  most  three,  and  else- 
where four  (except  in  the  inner  districts  of  the  larger  cities 
on  especially  broad  streets  or  when  heavy  assessments  have 
been  levied  on  abutters,  when  five  may  be  allowed),  and  those 
for  the  determination  of  the  permissible  number  of  stories  in 
each  case  in  accordance  with  the  character  of  the  locality  and 
the  breadth  of  the  street.  In  this  connection  the  provision  with 
regard  to  rear  land  may  be  of  interest  and  may  serve  also  as  a 
further  illustration.  It  reads  as  follows : 

SEC.  18.  (0  In  so  far  as  building  on  rear  land  is  permitted  at 
all  it  is  to  be  made  dependent  upon  the  size  of  the  court  or  garden, 
and  for  dwelling  purposes  is,  as  a  rule,  to  be  allowed  when,  for  all 
the  windows  of  the  rear  buildings,  an  angle  of  light  of  at  least  45 
degrees  is  secured  and  the  space  between  the  front  and  rear  buildings 
in  appropriate  cases  is  developed  with  gardens.  Exceptions  are  per- 
missible under  special  circumstances  in  the  inner  districts  of  larger 
cities.  In  no  case  shall  the  rear  buildings  of  a  street  form  a  solid 
row. 

(m)  In  the  case  of  larger  blocks  and  blocks  suited  thereto,  the 
right  may  be  reserved  to  the  building  police,  on  petition  of  those 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      459 

interested,  to  lay  out  later  streets,  for  dwellings  abutting  on  which, 
however,  only  detached  houses  of  at  most  three  stories,  may  be 
erected. 

Because  the  general  provisions  of  the  state  law  are  either  state- 
ments of  general  principles,  or,  when  they  are  definite  require- 
ments, are  subject  to  local  variation,  it  must  not  be  supposed 
that  they  may  be  disregarded  by  the  local  authorities  without 
good  reason ;  for  the  supervising  power  of  the  state  may,  when 
necessary,  be  used  to  enforce  them. 

Local  Action. — Local  variations  of  the  general  law  or 
additions  to  it  are  permitted  in  so  far  as  they  are  authorized 
by  the  general  law  or  as  local  conditions  demand.  Such  varia- 
tions are  made  by  local  statutes.  They  may  be  passed  in  com- 
munes by  the  executive  branch  and  the  council,  and  require 
the  ratification  of  the  Minister  of  the  Interior,  by  whom,  on 
appeal,  differences  of  opinion  between  the  two  branches  are 
settled.  The  local  police,  in  so  far  as  the  matter  has  not  been 
reserved  for  regulation  by  local  statute,  may  also  issue  building 
ordinances  not  only  for  police  reasons  but  for  the  promotion 
of  the  general  welfare.  The  state  may  compel  the  commune  to 
pass  a  local  statute,  and  compel  it  to  execute  it,  if  necessary. 
Exceptions  to  the  provisions  of  the  building  law  in  individual 
cases  of  hardship  are  granted  by  the  state  authorities. 

The  City  Plan. — The  content  of  the  plan  is  much  more 
extensive  in  Saxony  than  in  Prussia.  According  to  the  pro- 
visions of  the  state  act,  it  embraces  not  only  streets  and  build- 
ing lines,  but  the  "character"  of  buildings,  whether  wholly 
detached,  semi-detached,  or  in  groups  or  rows ;  front,  side  and 
rear  setbacks;  height  and  area  restrictions;  sites  for  public 
buildings;  restrictions  on  rear  buildings;  zoning;  and  other 
features  may  be  added  by  local  statute.  Plans  may  be  proposed 
not  only  by  local  authorities  but  by  land  owners;  and  are 
adopted  as  a  local  statute. 

Compensation  to  Land  Owner. — In  the  other  German 
states  it  is  the  rule,  as  it  is  in  Prussia,  that  in  city  planning  ex- 
propriation no  compensation  is  due  the  land  owner  for  restric- 
tions incident  to  the  transformation  of  acreage  into  building 
land  and  that  therefore  the  owner  of  land  planned  is  entitled 


460  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

to  compensation  only  for  land  actually  taken,  payable  at  the 
time  of  the  taking.  In  Saxony  as  in  Prussia  the  exceptions  to 
this  rule  are  slight,  but  in  some  of  the  other  states  they  are 
more  serious.  Thus  in  Baden,20  if  the  lot  has  buildings  on  it, 
the  owner  prevented  from  reconstructing  them  by  the  establish- 
ment of  a  building  line  or  street  line  may  claim  compensation, 
and  may  demand  that  it  be  paid  him  at  the  time  when  the  permit 
to  reconstruct  is  refused  him.  If  his  lot,  not  built  up,  is  situ- 
ated on  any  existing  street,  he  is  entitled  to  payment  for  such 
part  of  his  lot  as  falls  within  the  lines  of  the  proposed  improve- 
ment as  soon  as  the  plan  is  adopted;  and  if  the  land  affected 
is  the  interior  of  a  square,  as  soon  as  the  land  for  the  surround- 
ing streets  is  acquired  for  public  use.  Moreover  payment  for 
any  lot  may  be  claimed  at  once  on  the  adoption  of  the  plan  if 
the  whole  of  the  lot  is  included  in  the  improvement.  In  this 
connection  it  is  interesting  to  note  that  the  excellent  Dutch 
housing  and  city  planning  law  requires  the  authorities  to  show 
why  they  shall  not  at  once  take  and  pay  for  land  destined  by 
its  plan  to  become  public,  whenever  it  constitutes  more  than 
one-third  of  the  owner's  holding. 

Building  Freedom. — Of  late  years  there  has  been  a  grow- 
ing feeling  in  Germany  that  the  restrictions  of  the  planning 
law  upon  the  development  of  building  land  have  unduly  lessened 
its  amount  and  raised  its  price,  and  that,  especially  when  arbi- 
trarily administered,  it  needlessly  hampered  private  initiative. 
This  feeling  has  had  little  effect  in  Saxony,  or  in  Prussia  until 
the  passage  of  the  Housing  Law  of  1918,  but  has  modified 
somewhat  the  laws  of  several  of  the  other  states.  The  problem 
has  been  to  remedy  the  defects  of  the  law  without  sacrificing  the 
advantages  of  public  control. 

Obligation  to  Extend  the  City  Plan. — In  Saxony  the 
state  may,  in  cases  where  it  deems  it  urgently  necesSary,  require 
the  local  authorities  to  adopt  or  change  a  city  plan  ;  and  they  are 
of  course  under  the  general  obligation  to  care  for  the  interests 
of  the  community  in  their  charge.  There  is  no  other  obligation 

"Street  Law  of  October  15,  1008,  sees.  8,  9,  30;  see  also  the  Saxon 
law,  sec.  40.  and  that  of  Anhalt,  sec.  14.  (Law  of  June  19,  1905  and  May 
21.  1906,  amended  October  18.  1016.) 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY       461 

to  extend  the  city  plan.  In  Wiirttemberg,  however,21"22  these 
authorities  are  required  to  extend  the  planned  area  of  the  city 
whenever  there  is  need  of  additional  housing ;  and  in  Baden  23 
it  is  only  "when  sufficient  provision  for  the  need  of  dwellings 
has  been  made  by  the  establishment  of  local  street  plans  and  the 
construction  of  local  streets"  that  "the  erection  of  buildings 
outside  the  area  of  streets  and  plans  may  be  forbidden  for  a 
given  time,  fixed  by  local  police  provision." 

Prohibition  of  Building  in  Unplanned  and  Unbuilt  up 
Areas. — Throughout  Germany,  not  only  in  Prussia  but  in  non- 
Prussian  states,  the  need  of  protecting  the  unplanned  areas  and 
of  controlling  the  development  of  planned  areas  not  yet  built 
up  is  appreciated.  In  most  of  these  states  building  in  unplanned 
areas  is  as  a  rule  prevented,  and  the  building  of  unbuilt-up 
areas  is  carefully  regulated.24  In  Prussia,  it  will  be  remem- 
bered, a  building  permit  may  be  refused  for  land  destined  by 
the  plan  for  public  use  when,  in  the  course  of  the  planning  pro- 
ceedings, the  local  authorities  have  agreed  upon  the  lines  of 
improvements,  and  thus,  tentatively  at  least,  determined  the 
land  to  be  used.  In  Saxony  25  the  authorities  can  establish  a 
positive  building  prohibition  over  the  entire  area  to  be  planned 
as  soon  as  they  decide  to  adopt  or  change  a  plan.  This  pro- 
hibition remains  in  force  only  until  the  plan  is  adopted,  and  in 
no  case  longer  than  two  years.  There  are  similar  provisions 
in  the  laws  of  other  states.26 

Duty  to  Construct  Planned  Streets,  Etc. — In  a  number 
of  states  there  is  an  effort  to  make  the  duty  of  the  authorities 
to  construct  planned  streets,  squares,  etc.,  in  the  public  interest, 
specific.  Thus  in  Wiirttemberg  27  and  Baden  28  the  street  must 
be  built  as  soon  as  the  need  for  it  appears,  and  in  any  event 

"'"Art.  7,  ii. 

"Street  Law,  sees.  11,  12. 

"Saxony,  sec.  15;  Wiirttemberg,  art.  22,  65;  Baden,  Ortsstrassenrecht, 
or  Street  Law  of  Oct.  15,  1908,  sees.  6,  12;  Bavaria,  sec.  i;  Anhalt,  sec.  4. 
In  Wiirttemberg  building  can  be  forbidden  outside  the  planned  and  built 
up  areas  in  specific  cases,  but  not  by  general  rule  as  in  Prussia;  see  sec. 
65  of  the  Building  Ordinance. 

"Sec.  35- 

M  Wiirttemberg,  sec.  12 ;  Baden,  Street  Law,  sec.  3. 

"Art.  22. 

88  Street  Law,  sec.  10;  the  law  of  Hesse  is  similar. 


462  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

(a)  when,  up  to  the  land  for  which  the  street  or  portion  of 
street  is  desired,  the  land  owners  have  erected,  or  given  security 
for  the  erection  of,  a  continuous  row  of  houses,  on  at  least  one 
side  of  existing  streets  or  squares,  until  the  built-up  portion  of 
the  city  is  reached;  or  (&)  when  the  owners  of  land  abutting 
on  a  planned  street  agree  to  assume  all  costs  of  its  construction 
until  it  connects  with  an  existing  street,  and  its  maintenance 
for  five  years,  the  owners  so  constructing  receiving  the  right  of 
collecting  from  the  other  land  owners,  when  they  build  houses 
on  the  street,  the  construction  cost  without  interest  as  the  com- 
mune would  have  been  entitled  to  claim  compensation  if  it  had 
been  the  contractor. 

Swedish  Law  of  1907  — In  1907  Sweden  passed  her  plan- 
ning law,  partly  superseding,  partly  supplementing  her  law  of 
1874.  This  law,  now  incorporated  in  the  law  of  1917,  is,  with 
some  modifications,  still  in  force  as  a  part  of  the  later  law.  In 
the  main,  the  law  of  1907  is  similar  to  the  Italian  and  German 
laws.  The  plan  includes  streets,  public  markets  and  other 
public  open  places  and  in  some  cases  lot  subdivisions.  The 
plan  is  adopted  by  the  city  or  town  council,  and  must  be  ap- 
proved by  the  representative  of  the  crown.  After  its  approval, 
no  structures  shall  be  erected  within  the  lines  of  any  public  im- 
provement made  a  part  of  the  plan.  Building  on  unplanned 
areas  may  be  prohibited,  and  is  in  practice  allowed  only  on  spe- 
cial permit.  The  city  has  the  right  to  carry  out  the  provisions 
of  the  plan  and  may  also  condemn  the  areas  needed  for  the 
purpose.  The  land  owners  are  paid  for  the  land  at  the  time 
the  city  takes  it,  but  receive  no  compensation  for  restrictions 
resulting  from  the  adoption  and  approval  of  the  plan. 

The  novel  feature  of  the  law  is  its  regulation  of  lot  sub- 
division. Almost  invariably  planning  statutes  recognize  the 
importance  of  this  subject  and  endeavor  to  lay  out  streets  so 
that  blocks  will  be  produced  likely  to  be  subdivided  in  a  man- 
ner conducive  not  only  to  private  profit  but  to  the  general  wel- 
fare; and  make  requirements  with  regard  to  minimum  open 
spaces  and  percentage  of  uncovered  area  which  greatly  affect 
such  subdivision.  In  the  Swedish  Law  of  1907  the  lot  sub- 
division is  in  many  cases  a  part  of  the  city  plan  which  the  prop- 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      463 

erty  owner  is  compelled  to  comply  with,  and  in  certain  cases 
ownership  may  be  made  to  conform  to  this  plan  as  a  condition 
precedent  to  the  improvement  of  the  lots.29 

**  In  June,  1920,  Commissioners  from  Sweden  made  a  report  to  the 
Interallied  Housing  and  Town  Planning  Conference,  at  that  time  in 
Session  in  London,  on  planning  and  housing  in  Sweden.  (The  Housing 
Question  in  Sweden,  published  by  P.  A.  Norstedt  and  Soner,  Stockholm, 
1920.)  In  that  report  the  Commissioners  say: 

"The  original  documents  with  regard  to  Swedish  building  legislation 
are  the  Urban  Building  Act  of  8  May,  1874,  and  the  Town- Planning  Act 
of  31  August,  1907,  which  last  is  now  included  as  chap.  I  in  the  law  of 
1917  with  regard  to  the  formation  of  estates  in  towns.  The  Building  Act 
is  a  law  promulgated  by  the  King-in-Council.  The  Town-Planning  Act, 
on  the  other  hand,  has  the  character  of  a  civil  law  and  was  brought  into 
existence  chiefly  with  the  object  of  regulating  in  a  binding  way  the  juridical 
relations  between  municipalities  and  private  individuals  with  regard  to 
the  enforcement  of  the  town  plan.  According  to  the  Building  Act  also 
there  were  to  be  town  plans  for  towns  and  similar  communities ;  but  such 
plans  frequently  got  no  further  than  paper,  because  in  carrying  them 
into  effect  the  community  had  not  the  support  of  legal  rules,  but  was 
dependent  on  the  goodwill  and  good  faith  of  private  land-owners.  This 
impossible  state  of  things  was  abolished  by  the  Town-Planning  Act.  But 
the  importance  of  the  Town-Planning  Act  is  not  exclusively  confined  to 
this.  In  many  other  respects  also  it  has  formed  a  much  needed  comple- 
ment to  the  Building  Act,  which  is  now  antiquated  in  many  points. 

"Both  the  Building  Act  and  the  Town-Planning  Act  primarily  apply 
to  the  Towns  and  also  to  the  more  fully  developed  town-like  communities 
in  country  districts  which  in  Swedish  are  called  kopingar  (English  chip- 
ping) and  are  roughly  equivalent  to  Urban  Districts.  If  the  Crown  so 
directs,  these  laws  may  also  be  extended  to  other  localities  in  country 
districts  with  a  more  or  less  dense  population  (such  as  the  communities 
that  gather  round  important  railway  stations  and  works,  harbours  and 
fishing  centers,  etc.)  ;  and  these  are  then  constituted  special  communities 
for  the  performance  of  the  duties  that  are  cited  in  these  laws.  These 
primitive  communal  combinations  are  called  municipalsamhallen,  which 
roughly  correspond  to  Special  Sanitary  Districts.  Outside  the  towns,  the 
urban  districts  and  such  special  sanitary  districts,  in  which  the  Building 
Act  and  the  Town-Planning  Act  are  binding,  there  is  usually  complete 
liberty  with  regard  to  building.  This  limitation  has  had  results  that  are 
anything  but  happy ;  and  abuses  have  been  further  intensified  by  the  fact 
that  the  building  laws  have  been  construed  in  such  a  way  that  in  fact 
they  have  not  been  applied  at  all  until  a  town  plan  has  been  sanctioned 
for  the  place  in  question,  and  even  then  only  for  the  area  included  in  the 
Town  Plan. 

"The  existence  of  a  town  plan  is  thus  an  essential  condition  for  the 
subjection  of  the  individual,  as  regards  building,  to  measures  of  public 
control,  which  are  chiefly  exercised  by  a  communal  organ  known  as 
Byggnadsndmnden  or  the  Building  Control  Board.  It  is  only  just,  how- 
ever, to  recognize  that,  within  the  Town  Plan  and  in  connection  with  the 
laying  out  of  the  plan,  what  is  on  the  whole  an  effective  organization  of 
building  control  can  take  place.  The  possibilities  of  this  offered  by  the 
Building  Act  of  1874  are  in  themselves  extremely  limited ;  but  they  have 
been  very  happily  supplemented  by  the  Town-Planning  Act.  As  has  been 
mentioned  above,  the  Building  Act  has  binding  force  within  an  area  for 
which  a  town  plan  has  been  sanctioned ;  and  the  same  is  the  case  with  the 


464  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

local  regulations  which,  under  the  name  of  Building  By-Laws,  have  to 
adapt  the  general  principles  laid  down  in  the  Building  Act  to  the  special 
circumstances  of  each  community.  But  the  Building  Act  and  the  local 
Building  By-Laws  suffer  from  the  weakness  that  they  leave  no  room  for 
any  real  differentiation.  As  a  rule  they  do  not  prescribe  different  rules 
for  the  building  of  different  parts  of  the  community.  This  requirement, 
on  the  other  hand,  has  been  provided  by  the  Town-Planning  Act,  which 
permits  the  promulgation,  in  connection  with  the  Town  Plan,  of  'special 
town-planning  or  building  regulations.' 

"These  regulations  according  to  the  Town-Planning  Act,  are  passed 
and  established  in  the  same  way  as  the  Town  Plan  itself.  The  right  of 
making  a  decision  falls  to  the  proper  communal  authority  of  the  place, 
subject  to  the  sanction  of  the  Crown.  These  special  Town-Planning  Regu- 
lations have  acquired  extreme  importance  in  the  rational  regulation  of  the 
way  in  which  urban  areas  are  to  be  built  over.  Thus,  for  instance,  while 
the  Building  Act  permits  the  erection  of  five-storey  houses  everywhere 
within  a  community  where  the  streets  are  sufficiently  broad,  the  turning  to 
account  of  plots  for  building  purposes  almost  to  the  uttermost  limit,  etc., 
these  special  regulations  in  connection  with  the  Town  Plan  may  lay  it 
down  that  a  given  block,  or  a  given  part  of  a  block,  may  be  built  over 
only  with  detached  one-family  houses,  occupying  a  minor  proportion  of 
the  area  of  the  several  plots,  while  other  blocks  may  be  covered  only  with 
industrial  establishments ;  that  certain  ground  belonging  to  a  given  block 
shall  not  be  built  upon,  but  shall  be  left  as  a  fore-court  or  court  for  the 
whole  block.  If  there  are  no  such  regulations,  on  the  other  hand,  the 
Building  Act  and  the  Building  By-Law  hold  good  with  their  uniform  and, 
from  a  social  standpoint,  very  unfortunate  method  of  building — at  any 
rate  in  so  far  that  the  owner  of  the  land  cannot  be  compelled  against  his 
will  to  subject  himself  to  any  restrictions  over  and  above  those  therein 
provided. 

"These  brief  notes  may  give  some  idea  of  the  extent  to  which  the 
town-planning  system  plays  a  decisive  part  in  building  operations  within 
the  Swedish  urban  communities,  and  of  the  importance  of  a  town-planning 
policy  which  is  skilfully  conducted,  based  on  expert  knowledge,  and  ani- 
mated by  a  broad  social  spirit.  And  indeed  the  town-planning  system  in 
Sweden  during  the  last  ten  years  has  shown  a  rich  and  fertile  develop- 
ment, guided  by  a  staff  of  eminent  specialists,  who  have  understood  how 
to  turn  to  account  the  great  possibilities  opened  up  by  the  law  of  1907  for 
the  utilization  of  the  Town  Plan  in  the  service  of  the  systematic  regula- 
tion of  building. 

"The  work  of  town-planning  is  primarily  a  municipal  matter :  a  plan 
for  the  town  must  be  made  for  every  town  and  similar  community  and  is 

essed  by  the  municipal  authority  affected,  but  it  must,  to  pain  validity, 
sanctioned  by  the  Crown.  Nevertheless  a  very  substantial  part  of  the 
honour  of  the  high  standard  of  the  Swedish  Town-Planning  system  must 
be  awarded  to  the  central  government  organ  in  this  department,  the  Royal 
Building  Board,  which  in  word  and  deed  has  helped  the  municipalities  in 
the  solution  of  the  very  difficult  problems  that  have  come  before  them  in 
the  working  out  of  suitable  plans.  A  few  figures  will  give  an  idea  of  the 
scope  of  this  work.  In  the  year  1918  the  Building  Board  dealt  with  no 
fewer  than  278  items  in  the  nature  of  Town-Planning;  and  in  the  same 
year  the  Crown  approved  45  new  or  considerably  extender!  town  plans, 
of  which  31  were  concerned  with  towns,  4  with  urban  districts  and  10  with 
special  sanitary  disti 

"Though  there  is  thus  every  reason  to  be  satisfied,  on  the  whole,  with 
our  present  building  legislation,  nevertheless,  as  has  already  been  observed 
by  way  of  introduction,  that  legislation  still  suffers  from  a  number  of  de- 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY       465 

Note  G 
No.  i.    THE  ITALIAN  EXPROPRIATION  LAW  OF  186s10 

CHAPTER  VI 
OF  REGULATORY    BUILDING   PLANS 

ART.  86.  Those  communes  having  a  population  of  at  least  10,000 
may,  for  the  public  welfare,  to  be  determined  by  actual  need  to  pro- 
vide for  health  and  for  the  necessary  communications,  make  a  reg- 
ulatory plan  in  which  shall  be  shown  the  lines  to  be  observed  to  attain 
the  desired  improvement  in  the  reconstruction  of  the  parts  of  the 
commune  in  which  the  faulty  arrangement  of  the  buildings  is  to  be 
remedied. 

ART.  87.  The  projects  for  the  regulatory  plans  shall  be  made 
public  by  the  mayor  in  accordance  with  the  terms  of  articles  17  and 
1 8  and  must  be  adopted  by  the  Communal  Council,  which  shall  con- 
sider any  objections  that  may  be  presented. 

If  the  Communal  Council  shall  disallow  the  objections,  the  Provin- 
cial Deputation  shall  be  asked  for  its  opinion  upon  the  merits  of  the 
project  and  the  objections  to  it. 

The  regulatory  plans  shall  be  approved  in  accordance  with  the 
provisions  of  article  I2,31  after  the  Superior  Council  of  Public  Works 
and  the  Council  of  Sanitation,  when  necessary,  have  been  heard. 

In  the  decree  approving  the  plan,  the  time  within  which  it  must 
be  executed,  not  to  exceed  twenty-five  years,  shall  be  fixed. 

fects,  the  remedy  of  which  is  the  object  of  lively  interest  on  the  part 
of  Government  authorities.  Both  the  Building  Act  of  1874  and  the  Town- 
Planning  Act  of  1907  are  at  the  present  moment  under  revision.*  The 
primary  object  of  this  revision  is  to  tackle  what  we  may  call  the  rookery 
problem,  that  is  to  say  the  unregulated,  huddled  and  planless  building  over 
of^  areas  just  outside  the  boundaries  of  the  urban  communities  proper.  In 
this  respect  two  ways  may  be  followed :  either  to  extend  a  compulsory  plan- 
ning to  such  an  extent  that  no  building  operations  of  any  magnitude  may 
be  started  at  all  without  a  detailed  plan  for  their  arrangement ;  or  to  set 
up  and  try  to  carry  into  effect  certain  fundamental  requirements  in  build- 
ing without  going  so  far  as  to  insist  upon  the  elaboration  of  a  complete 
town  plan  in  every  case.  Both  methods  have  distinct  advantages  and  no 
less  distinct  drawbacks ;  and  it  cannot  yet  be  foreseen  which  will  be  chosen 
by  the  legislature.  One  thing  is  certain,  however,  and  that  is  that  we  may 
very  soon  expect  a  forceful  intervention  with  the  object  of  guiding  build- 
ing operations,  even  outside  the  borders  of  the  present  urban  communities, 
into  sound  ways  controlled  by  public  authorities." 

80  Adopted  June  25.  Raccolta  uMciale  delle  leggi  e  del  decreii,  1865, 
No.  2359.  P-  I477- 

*  Of  this  law. 

*  On    December    15,    1920,    the    committee    in    charge    of   the    matter    brought    in  _a 
report,  with  the  draft  of  an  amended  law,  for  which  see  Betankande  med  Forslag  till 
Stadsplanlag,    published    by    the    Kungl.     Boktrycleriet,    P.    A.     Norstedt,     &     Soner, 
Stockholm,     1920. 


466  .THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ART.  88.  The  decree  approving  the  plan  shall  be  published  by  the 
Mayor  and  within  one  month  brought  by  him,  in  the  form  of  sum- 
mons, to  the  attention  of  each  owner  of  property  comprised  within 
the  plan. 

ART.  89.  When  the  regulatory  plan  has  become  final,  the  owners 
of  lands  and  of  buildings  comprised  within  it  who  wish  to  make  new 
constructions  or  rebuild  or  modify  existing  constructions,  whether  of 
their  own  volition  or  through  necessity,  must,  from  the  day  of  the 
publication  of  the  plan,  conform  to  its  provisions. 

ART.  90.  Works  made  in  violation  of  the  preceding  article  shall 
be  destroyed  and  the  owner  shall  be  fined  not  more  than  1000  lire. 

ART.  91.  The  area  of  the  buildings  and  lands  upon  which  con- 
struction is  prohibited,  as  well  as  the  public  area  upon  which  private 
buildings  are  to  be  erected,  do  not  cease  to  belong  to  the  respective 
owners  until  the  deposit  or  the  payment  of  compensation  shall  have 
been  made  according  to  articles  39  and  40.° 

ART.  92.  The  approval  of  the  regulatory  plan  is  equivalent  to  a 
declaration  of  public  utility  and  confers  power  to  expropriate  prop- 
erty comprised  within  it;  provided,  however,  that  the  provisions  of 
the  present  law  are  observed 

CHAPTER  VII  OF  EXTENSION  PLANS 

ART.  93.  Those  communes  for  which  the  actual  necessity  of  ex- 
tending the  inhabited  part  is  proved  may  adopt  a  regulatory  plan  of 
extension,  in  which  shall  be  shown  the  rules  to  be  observed  in  the 
construction  of  new  buildings  so  as  to  provide  for  the  health  of  the 
inhabited  part,  and  for  its  safest,  most  convenient,  as  well  as  its 
suitable  and  dignified  arrangement. 

To  these  plans  the  provisions  of  the  preceding  chapter  are  appli- 
cable. 

ART.  94.  If  for  the  execution  of  the  extension  plan  the  com- 
mune must  proceed  to  the  construction  of  the  public  ways,  the  owners 
shall  surrender  the  necessary  land  without  other  formality. 

The  compensation  shall  be  determined  in  accordance  with  articles 
39,  40,  and  41 ;  *  but  the  owners  shall  also  be  liable  for  such  contribu- 
tions for  the  construction  and  maintenance  of  ways  as  may  be  im- 
posed upon  them  by  local  bylaws. 

No.  2.    THE  PRUSSIAN  STREET  AND  BUILDING  LINE  LAW  OF  1875, 
AND  HOUSING  LAW  OF  1918 

The  Prussian  statute  of  July  2,  1875  (to  be  found  in  the  Gcsctz 
Sammlung,  or  Collection  of  Laws  of  Prussia  for  that  year,  p.  561) 

"Of  this  law. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      467 

popularly  known  as  the  "Street  and  Building  Line  Law,"  practically 
unchanged  until  1918,  was  materially  amended  by  the  Housing  Law 
of  that  year  (passed  March  28,  to  be  found  in  the  Gesetz  Sammlung, 
p.  23).  The  law  of  1875  is  here  given  as  amended,  the  portions  of  it 
stricken  out  by  the  law  of  1918  being  enclosed  in  brackets,  ([  ]) 
and  the  additions  made  by  that  law  being  placed  in  italics. 

The  Housing  Law  of  1918  consists  of  amendments  to  the  law  of 
1875  which  appear  in  italics  in  the  law  of  1875;  of  matter  of  interest 
to  the  reader  in  this  country  which  is  given  in  full  as  it  appears  in 
the  law  of  1918;  and  of  matter  of  little  interest  to  such  a  reader  or 
not  relevant  to  this  work,  which  is  summarized.  In  this  note  the 
amended  act  of  1875  is  first  given,  followed  by  all  the  provisions  of 
the  act  of  1918,  in  full  or  in  summary,  or  an  indication  where  in  this 
work  they  can  be  found. 

LAW  WITH   REGARD  TO  THE  LAYING  OUT  AND  CHANGE   OF  STREETS   AND 
SQUARES  IN  CITIES  AND  RURAL  LOCALITIES,  OF  JULY  2,   1875 

SEC.  I.  The  street  and  building  lines  for  the  laying  out  or  change 
of  streets  and  squares  and  also  gardens,  play  and  recreation  grounds 
in  cities  and  rural  places,  in  accordance  with  public  needs,  shall  be 
established  by  the  Executive  Branch  of  the  Local  Council  in  concur- 
rence with  the  Local  Council,  with  the  consent  of  the  local  police 
authorities. 

The  local  police  authorities  may  require  the  establishment  of 
street  and  building  lines  when  the  public  interests  in  their  charge  or 
the  rise  of  a  need  of  small  or  medium  sized  dwellings  render  it  nec- 
essary. In  the  latter  case,  the  consent  of  the  Supervisory  (State) 
Committee*3  is  required. 

In  the  meaning  of  this  statute,  the  street  includes  the  road  bed 
and  the  sidewalks. 

As  a  rule  the  street  lines  are  also  the  building  lines.  For  special 
reasons,  however,  a  building  line  back  of  [different  from,  but  as  a 
rule  not  more  than  3  m.  back  of]  the  street  line,  may  be  established. 

SEC.  2.  Street  and  building  lines  (sec.  i)  may  be  established  for 
single  streets  or  parts  of  streets,  squares  (and  gardens,  play  and  recre- 
ation grounds),  or  for  large  areas,  in  accordance  with  the  probable 
needs  of  the  near  future,  by  the  establishment  of  building  plans. 

If,  in  consequence  of  destruction  by  fire  or  other  catastrophes,  it 
is  a  question  of  rebuilding  entire  sections  of  a  place,  then  the  munici- 
pality shall  come  to  a  speedy  decision  whether  and  to  what  extent  a 
new  building  plan  shall  be  proposed;  and  if  proposed,  to  provide  for 
its  immediate  establishment. 

43  Besirksausschuss.  Prussia  is  divided  into  provinces,  the  provinces 
into  Bezirke,  or  large  administrative  units,  and  the  Besirke  into  smaller 
units  called  Kreise,  translated  as  "districts." 


468  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

SEC.  3.  In  establishing  street  and  building  lines  due  regard  shall 
be  paid  to  the  need  of  dwellings  as  well  as  the  requirements  of  traf- 
fic, safety  from  fire,  and  public  health;  and  care  shall  also  be  taken 
that  there  shall  not  be  any  disfigurement  of  the  streets  or  of  built-up 
localities  or  country  landscapes. 

Streets  shall  therefore  be  sufficiently  broad,  and,  in  new  sections, 
the  connection  with  existing  streets,  good. 

In  order  that  the  need  of  dwellings  may  be  met,  care  shall  also  be 
taken  that  squares  (also  garden,  play  and  recreation  grounds)  have 
been  laid  out  in  abundance,  that  opportunity  has  been  provided  to 
erect  church  and  school  buildings  in  suitable  places,  that  for  dwelling 
purposes  blocks  of  a  suitable  depth  and  streets  of  less  than  the  ordi- 
nary width  in  accordance  with  housing  needs  of  various  sorts  /n/rv 
been  constructed  and  that  by  the  fixing  of  the  necessary  lines  build- 
ing land  in  proportion  to  the  need  of  dwellings  has  been  opened  up. 

SEC.  4.  Every  establishment  of  street  and  building  lines  (sec.  i) 
shall  contain  an  accurate  designation  of  the  lots  and  parts  of  lots 
affected  and  shall  fix  the  grades  and  indicate  the  method  of  drainage 
of  the  streets  and  squares  in  question. 

SEC.  5.  The  local  police  authorities  shall  have  power  to  withhold 
their  consent  (sec.  i)  only  when  the  public  interests  in  their  charge 
or  the  rise  of  a  need  of  small  or  medium  sized  dwellings  require  it. 
In  so  far  as  consent  is  refused  on  account  of  the  rise  of  a.  need  of 
small  or  medium  sized  dwellings,  it  requires  the  concurrence  of  the 
supervisory  authorities. 

If  the  Executive  Branch  of  the  Local  Council  does  not  acquiesce 
in  the  refusal,  it  may  appeal  to  the  District*4  Committee. 

It  is  authorized  to  act  with  regard  to  the  question  of  need  on 
petition  of  the  local  police  authorities,  when  the  Executive  Branch 
refuses  to  accept  the  fixation  of  lines  demanded  by  the  local  police 
authorities  (sec.  i,  par.  2). 

In  so  far  as  such  a  petition  is  based  upon  the  rise  of  the  need  of 
small  or  medium  sized  dwellings,  it  may  be  made  only  in  concurrence 
with  the  local  supervisory  authorities. 

For  the  district  committee  in  any  city  which  constitutes  a  district  * 
and  in  any  city  of  more  than  10,000  inhabitants  which  forms  part  of 
a  rural  district,"  is  substituted  the  Supervisory  (State)  Committee; 
in  Berlin  the  Minister  of  Public  Works. 

SEC.  6.  If  the  plan  to  be  established  affects  a  fortress  (sec.  4),  or 
there  are  within  its  limits  public  streams,  state  roads,  railways  or 
railway  stations,  then  local  authorities  shall  see  to  it  that  the  authori- 
ties concerned  are  given  a  reasonable  opportunity  to  safeguard  their 
interest. 

"  "Krcis";  see  note  33,  p.  467. 

""Stadtkreis." 

•"•Landkreis." 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      469 

SEC.  7.  When  the  local  police  authorities,  or,  as  the  case  may  be, 
the  District  or  Supervisory  Committee  (sec.  5)  has  given  its  consent, 
then  the  Executive  Branch  of  the  Local  Council  shall  furnish  the  pub- 
lic an  opportunity  of  inspection,  public  notice  of  which  shall  be  given 
in  the  manner  customary  in  the  locality.  This  notice  shall  contain  a 
statement  that  objections  to  the  plan  may  be  made  to  the  Executive 
Branch  of  the  Local  Council  within  a  given  time,  which  shall  be  not 
less  than  four  weeks.  If  the  establishment  affects  only  single  pieces 
of  land,  then  notice  to  the  real  estate  owners  concerned  may  be  sub- 
stituted for  the  opportunity  for  general  inspection  with  notice. 

SEC.  8.  In  so  far  as  objections  raised  (sec.  7)  are  not  settled  in 
negotiation  between  the  Local  Council  and  the  objectors,  they  shall 
be  decided  by  the  District  Committee,  or,  in  any  city  which  constitutes 
a  district  or  a  city  of  more  than  10,000  inhabitants  in  a  rural  district,38* 
by  the  Supervisory  Committee ;  in  Berlin  by  the  Minister  of  Public 
Works.  If  there  are  no  objections,  or  when  they  are  finally  disposed 
of  (sec.  16),  then  the  Local  Council  shall  formally  establish  the  plan, 
lay  it  open  for  public  inspection  and  make  it  known  in  the  manner 
usual  in  the  locality. 

SEC.  9.  If  several  localities  are  concerned  in  the  fixing  of  street 
and  building  lines,  the  Executive  Branches  of  the  Councils  of  the 
localities  involved  shall  discuss  the  matter  and  try  to  come  to  an 
agreement. 

On  matters  in  which  an  agreement  cannot  be  reached,  the  District 
Committee  decides,  or  in  any  city  which  constitutes  a  district,  or  city 
of  more  than  10,000  inhabitants  belonging  to  a  rural  district,  the 
Supervisory  Committee ;  and  in  Berlin,  the  Minister  of  Public  Works. 

SEC.  10.  Street  and  building  lines,  whether  established  before  or 
after  the  passage  of  this  statute,  can  be  abolished  or  changed  only 
in  accordance  with  the  foregoing  provisions. 

For  the  establishment  of  new  or  the  change  of  existing  building 
plans  in  the  cities  of  Berlin,  Potsdam,  Charlottenburg  and  their  im- 
mediate surroundings,  royal  consent*1  is  necessary. 

SEC.  ii.  On  and  after  the  day  on  which  the  plans  are  made  pub- 
lic, as  provided  in  section  8,  the  owner  holds  his  land  subject  to  the 
restriction  that  all  building  beyond  the  building  line  may  be  forbid- 
den. At  the  same  time  the  municipality  acquires  the  right  to  appro- 
priate the  land  destined  by  the  established  street  lines  for  streets  and 
squares,  and  also  for  gardens,  play  and  recreation  grounds. 

SEC.  12.  By  local  statute  it  may  be  provided  that  on  streets  or 
parts  of  streets  which  are  not  yet,  in  accordance  with  the  building 
police  regulations  of  the  locality,  completed  for  public  traffic  and 

M*  Many  but  not  all  cities  of  more  than  10,000  inhabitants  have  become 
Stadtkreise. 

37  Now  the  consent  of  the  State. 


470  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

building  on  land  abutting  thereon,  residential  buildings  with  an  exit 
toward  these  streets  shall  not  be  erected. 

Within  the  general  terms  of  this  provision,  local  statute  shall  pre- 
scribe the  conditions  in  detail.  Such  statute  must  be  approved  by  the 
Supervisory  Committee ;  in  Berlin  by  the  Minister  of  the  Interior. 
From  the  decision  of  the  Supervisory  Committee  there  is,  within  a 
period  of  two  weeks,  an  appeal  to  the  Provincial  Council. 

After  ratification  the  statute  shall  be  made  public  in  the  manner 
customary  in  the  locality. 

(4)  From  the  prohibition  exemption  may  be  granted  if  a  need 
of  small  or  medium  sized  dwellings  exists,  if  there  is  a  well  founded 
prospect  that  the  owner  is  intending  to  provide  for  this  need  by  the 
building  of  appropriate  healthful  and  properly  arranged  dwellings  and 
if  there  is  no  paramount  proper  interest  of  the  commune  to  the  con- 
trary.   If  the  council  shows  that  proper  measures  have  been  taken 
sufficiently  to  fill  the  need  for  small  or  medium  sized  dwellings  by  the 
erection  of  houses  of  at  most  two  stories  and  if  security  is  given  that 
these  measures  will  be  carried  out,  then  the  exemption  for  the  erec- 
tion of  buildings  with  more  stories  shall  not  be  granted. 

(5)  If  by  resolution,  of  the  Executive  Branch  and  the  Council  it 
is  provided  that  dwelling  houses  shall  be  erected  only  on  the  making 
of  payment  or  the  giving  of  security  for  the  assessments,  fixed  by 
the  Council  in  accordance  with  section  15  of  this  law  or  section  p  of 
the  Communal  Tax  Law  of  July  14,  1893  (Gesets  Sammlungf  p.  152), 
then  the  exemption  shall  not  be  granted  until  such  payment  has  been 
made  or  security  given. 

(6)  With  regard  to  the  granting  of  exemptions  in  contested  cases 
the  Supervisory  Committee  decides. 

(7)  Under  the  same  conditions  the  Supervisory  Committee  shall 
have  the  right  to  decide  that  the  commune,  in  so  far  as  it  maintains  a 
public  water,  drainage  or  lighting  system  as  a  community  undertak- 
ing, shall  give  the  land  owners,  in  accordance  with  general  local  regu- 
lations, the  use  of  these  utilities. 

SEC.  13.  For  the  limitation  of  the  right  to  build  under  section  12 
no  indemnity  shall  be  allowed;  and  for  the  taking  of  land  or  the 
limitation  of  the  right  to  use  it  by  the  fixing  of  new  street  or  build- 
ing lines,  only  in  the  following  cases: 

1.  When,  on  the  demand  of  the  municipality,  the  land  destined 
for  streets  or  squares,  and  also  gardens,  play  and  recreation  grounds, 
is  surrendered  to  public  use; 

2.  When  the  street  or  building  line  affects  existing  buildings  and 
the  land  is  cleared  of  buildings  to  the  new  line; 

3.  When  the  street  line  of  a  street  newly  to  be  built  affects  a 
piece  of  land  not  built  on,  but  suitable  to  be  built  on ;  and  this  land  at 
the  time  of  the  establishment  of  this  line  was  situated  on  an  already 
existing  street,  finished  and  ready  for  public  traffic  and  for  the  erec- 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      471 

tion  of  structures  on  land  abutting  on  it ;  and  buildings  are  erected  on 
the  new  line. 

When  land  is  destined  for  streets  and  squares,  gardens,  play  and 
recreation  grounds,  indemnity  is  allowed  in  all  cases  for  the  taking  of 
the  land  ownership;  and  also  where,  under  par.  2,  there  is  a  restric- 
tion of  the  right  of  ownership  in  the  land  in  consequence  of  the 
establishment  of  a  building  line  different  from  the  street  line,  in  so 
far  as  the  use  of  that  part  of  the  land  already  built  on  is  restricted. 
(Sec.  12  of  the  Law  with  regard  to  Condemnation  of  Land,  of  June 
II,  1874.) 

In  all  the  above  mentioned  cases  the  owner  may  demand  the  tak- 
ing of  the  entire  lot  when  by  the  building  line  it  is  either  wholly  or 
to  such  an  extent  appropriated  that  the  rest  of  the  lot  under  the 
building  police  rules  of  the  locality  is  no  longer  suitable  for  building 
purposes. 

In  this  paragraph  "lot"  shall  be  deemed  to  mean  all  contiguous 
land  belonging  to  the  same  owner. 

SEC.  130.  At  the  time  when  the  lines  for  a  street,  a  part  of  a 
street  or  a  square  are  formally  fixed,  the  right  accrues  to  the  com- 
mune to  take  from  the  owner  with  compensation  any  piece  of  land 
contiguous  to  the  line  of  the  street,  the  part  of  the  street  or  the 
square,  in  so  far  as,  according  to  the  building  police  regulations  of 
the  locality,  it  is  not  suitable  for  building  purposes. 

SEC.  14.  In  fixing  the  indemnities  to  be  paid  under  section  13 
and  section  130,  paragraph  i,  and  in  carrying  out  the  expropriation, 
section  24  ff.  of  the  Law  with  regard  to  Expropriation  of  Land  of 
June  ii,  1874,  applies. 

Disputes  over  the  date  when  indemnity  is  due  shall  be  decided  by 
the  courts. 

The  indemnities  are  to  be  paid  by  the  municipality  within  whose 
limits  the  land  in  question  lies,  except  where,  for  some  special  legal 
reason,  an  individual  is  liable. 

SEC.  140.  The  law  with  regard  to  the  replanning  of  building  land 
in  Frankfort-on-the-Main  of  July  28,  1902  (Gesetz  Sammlung,  p. 
273}  and  the  law  of  July  8,  1007  (Gesetz  Sammlung,  p.  250)  amend- 
ing section  13  of  the  same,  may  be  adopted  for  the  limits  of  a  com- 
mune by  local  statute.  The  local  statute  must  be  ratified  by  the  Super- 
visory Committee. 

SEC.  15.     By  local  statute  it  may  be  provided  that — 

(a)  upon  the  laying  out  of  a  new  or  the  extension  of  an  exist- 
ing street,  if  it  is  intended  that  buildings  shall  be  constructed  on  abut- 
ting land;  or 

(b)  upon   the   construction   of    buildings   on   land    abutting   on 
existing  streets  or  parts  of  streets  where  there  has  been  no  such 
construction — 

the  promoter  of  the   addition  or  the   abutting  landowners — the 


472  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

latter  as  soon  as  they  build  on  such  land — shall  clear,  construct,  drain, 
provide  for  lighting  in  proper  manner,  and  for  a  period  not  to  exceed 
five  years  maintain  the  street;  or  shall  contribute  proportionately  to 
the  costs  or  pay  a  sum  sufficient  for  all  of  such  purposes.*"  The  abut- 
ting owners  shall  not  be  assessed  for  more  than  half  the  width  of  the 
street ;  or,  if  it  is  wider  than  26  m.  for  more  than  13  m. 

The  entire  cost  of  street  construction  and  maintenance  shall  be 
assessed  on  the  abutters  in  proportion  to  their  frontage  on  the  street. 
//  the  frontage  of  a  lot  whose  owner  has  become  liable  for  street 
costs  is  later  increased  by  reason  of  the  fact  that  to  the  lot  an  area 
has  been  united  in  use  for  which  the  street  costs  have  not  been  paid, 
in  such  case  the  costs  collectable  for  such  increase  shall  thereupon  be 
imposed  upon  such  owner. 

Detailed  regulations  for  assessment  in  accordance  with  these  pro- 
visions **  shall  be  made  by  local  statute.  The  provisions  of  section  12 
govern  as  to  its  approval,  appeals  therefrom,  and  publication. 

SEC.  150.  (i)  By  local  statute  it  may  be  prescribed  that  the 
assessments  provided  for  in  the  previous  paragraphs  and  in  section  9 
of  the  Communal  Tax  Law  of  July  14,  180,3  (Gesetz  Sammlung,  p. 
152),  as  well  as  the  payments  specified  in  section  6  itself  for  buildings 
abutting  on  streets,  which  from  their  situation  and  construction  appear 
to  be  specially  intended  for  dwellings  for  those  of  small  means  and  for 
building  up  with  houses  of  at  most  two  stories  (small  dwelling  streets) 
may  be  altogether  or  in  part  remitted  or  made  payable  in  installments, 
in  so  far  as  the  buildings  are  intended  chiefly  for  dwellings  of  the 
kind  described  or  for  common  appliances  for  the  benefit  of  those  of 
small  means  (the  care  of  children,  education,  recreation,  and  the  like). 
If  later  the  purpose  of  the  building  is  changed,  then  the  taxes  and 
assessments,  in  so  far  as  they  were  remitted  or  made  payable  in 
installments,  may  be  collected  from  the  owner  of  the  land  at  the  time. 

(2)  The  local  statute  may  make  further  provisions  with  regard 
to  the  conditions  under  which  the  privileges  shall  apply  to  the  streets, 
buildings  and  dwellings  in  question. 

*  SECS.  16-18.     Procedural  matters,  of  no  general  interest,  now 
superseded  by  other  statutes  or  repealed. 

*  SEC.  19.     Repeal  of  statutes  and  building  police  ordinances,  in 
so  far  as  contrary  to  this  statute. 

SEC.  20.  The  Minister  of  Public  Works  is  charged  with  the 
execution  of  this  statute. 

***  The  paragraphs  in  this  sentence  and  the  symbols  indicating  the 
same,  not  in  the  original  law,  were  for  clearness  introduced  by  the  author 
in  the  translation. 

"To  which  the  Communal  Tax  Law  of  1893,  sec.  10,  adds:  "or  on  some 
other  basis,  especially  area  fit  for  building  on." 

*  Summarized. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      473 
*  PRUSSIAN  HOUSING  LAW  OF  MARCH  28,  1918 


ARTICLE  I 

Amendments  of  law  of  July  2,  1875,  for  which  see  p.  466  of 
this  work. 

ARTICLE   2 

In  so  far  as  necessary  for  the  satisfaction  of  the  need  of  medium- 
sized  and  small  dwellings  and  the  sanitation  of  residential  districts, 
house  blocks  and  the  like,  the  Minister  of  Public  Works  is  em- 
powered, until  December  31,  1926,  to  authorize  expropriation,  under 
the  Simplified  War  Statute  of  Expropriation  of  September  n,  1914, 
and  March  27,  1915. 

ARTICLE  3 

Extension  of  the  right  of  enlarging  and  changing  the  boundaries 
of  communes. 

ARTICLE  4 

SEC.  i.    Building  ordinances  may: 

1.  Regulate  use  zoning,  and,  where  building  lines  have  not  been 
established,  create  districts  in  which  only  detached  houses  of  not  more 
than  two  stories  are  allowed. 

2.  Create  districts  for  which  heavy  industry  is  excluded. 

3.  Create  districts  solely  for  residential  or  industrial  structures. 

4.  Regulate  the  finishing  and  painting  of  structures  to  be  used 
for  residential  purposes,  and  all  structures  visible  from  public  places; 
also  require  uniformity  in  the  design  of  the  structures  abutting  on 
streets,  with  due  regard  to  the  protection  of  monuments  and  the  home, 
including  the  appearance,  not  only  of  the  houses  themselves,  but  of 
the  street  or  country  landscape  of  which  they  are  a  part.38 

5.  Require  the  submission  of  plans  of  the  design  of  all  the  outer 
surfaces  of  dwelling  houses. 

6.  Provide  when  garden  structures,  etc.,  shall  not  be  deemed  to 
be  dwelling  houses  under  the  settlement  laws  of  Aug.  10,  1904,  Nov. 
4,  1874,  and  section  12  of  the  law  of  July  2,  1875. 

SEC.  2. — i.  In  so  far  as  the  building  development  requires  it,  the 
provisions  of  building  ordinances  for  dwelling  houses,  especially 
those  with  regard  to  construction  to  ensure  stability,  safety  from  fire, 

*  Summarized. 

39  The  German  word  is  Heimatschutz  or  "protection  of  the  home." 
In  English  we  are  just  beginning  to  regard  the  setting  of  the  house  as  a 
part  of  the  home,  and  have  no  one  word  or  expression  comprehensive 
enough  to  include  all  that  the  German  word  contains. 


474  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

safety  of  exit,  and  height  of  rooms  shall  differ  for  large  and  small 
buildings. 

2.  If  in  larger  districts4*  there  are  building  ordinances  for  large 
and  small   communes,  then  the  provisions   in  them  with   regard  to 
height  of  buildings,  the  amount  of  open  space  to  be  left  and  the  num- 
ber of  stories,  to  fit  the  special  conditions  in  each  commune  shall  be 
differentiated. 

3.  In  cities  which  are  districts  as  a  rule  building  regulations  shall 
be  issued  by  the  local  authorities. 

SEC.  3.  Building  ordinances  shall  provide  that  where  detached 
houses  are  practicable  and  in  general  use,  exposed  party  walls  shall 
be  prevented. 

SEC.  4. — i.  Police  ordinances,  so  far  as  conditions  require,  shall 
have  graduated  provisions  for  the  construction  and  maintenance  of 
local  streets  in  accordance  with  their  special  purposes  (main  traffic 
streets,  minor  traffic  streets,  residential  streets  and  roads,  etc.). 

2.  To  promote  proper  residential  conditions,  police  ordinances 
may  limit  traffic  on  residential  streets,  byways,  and  other  local  streets 
which  serve  as  access  to  dwelling  houses. 

SEC.  5.     Procedure. 

ARTICLES  5-7 

Use  and  inspection  of  dwelling  houses. 

ARTICLE  8 

Aid  by  the  state  (20  million  marks)  for  the  erection  of  houses  in 
furtherance  of  cooperative  and  other  building  projects. 

ARTICLE  9 
Repeals,  etc. 

No.  3.    THE  SAXON  BUILDING  LAW  OF  1900** 

*  PART    I.      GENERAL    PROVISIONS 

SEC.  I.  The  word  "buildings"  as  used  in  this  law,  includes  not 
only  structures  of  all  sorts  rising  from  the  ground,  but  the  necessary 

**The  political  or  administrative  district  consisting  of  several  cities 
or  other  municipalities  and  the  surrounding  country  is  meant. 

41  Passed  July  i,  1900;  to  be  found  in  the  Gesets  und  ^erordnungsblatt 
or  Collection  of  Laws  and  Ordinances  of  Saxony  for  1900.  G.  V.  Bl.,  p. 
381 ;  here  given  as  amended  May  20,  1904,  and  to  some  extent  by  later 
Taws;  to  be  found  in  ib.,  p.  163.  For  the  law  in  this  form,  with  intro- 
duction, and  notes,  in  German,  see  the  edition  of  Dr.  A.  Rumpelt,  4th  ed., 
Leipsig,  1911,  Rossbcrg'sche  Verlagsbuchhandlung. 

*  Summarized. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      475 

sewers,  water  and  light  connections,  etc.,  for  them,  as  well  as  bridges, 
dams,  etc. 

SECS.  2-4.     Record  of  building  police  restrictions. 

SEC.  5.  Where  building  is  destroyed  without  fault  of  owner  by 
fire,  water  or  other  elemental  force,  rebuilding  for  five  years  there- 
after governed  by  provisions  relative  to  lots  not  built  on. 

SECS.  6-7.  Exceptions  to  the  requirements  of  this  law  are  granted 
by  the  state  administrative  or  police  authorities  after  hearing  all 
parties  interested. 

PART   II.      LOCAL  LAWS  AND  POLICE  REGULATIONS 

SEC.  8.  In  so  far  as,  in  view  of  local  conditions,  a  special  statu- 
tory regulation  of  building  matters,  in  accordance  with  the  provisions 
of  this  statute  or  in  addition  to  them,  appears  to  be  expedient,  it  shall 
be  made  by  local  statute. 

Provisions  of  local  statutes  deviating  from  the  terms  of  this  statute 
are  permissible  in  so  far  as  they  are  authorized  by  this  statute  or  as 
local  conditions  demand. 

SEC.  9.  The  local  statutes  may  be  issued  for  communes,  or  manors, 
or  parts  thereof. 

When  lots  of  land  abut  on  a  street  that,  in  its  entire  width,  is  in 
one  commune  or  manor  and  the  lots  are  in  another  commune  or 
manor,  provisions  for  imposing  upon  the  owners  of  these  lots  outside 
its  limits  the  duties  specified  in  Parts  IV  and  VI  of  this  law  may  be 
passed  as  local  statutes  by  the  jurisdiction  in  which  the  street  is 
situated  when  strong  reasons  of  expediency  demand.  For  the  ap- 
proval of  such  provisions  a  previous  hearing  of  the  Communal  Coun- 
cil of  the  neighboring  district  and  of  the  landowners  affected,  is 
necessary. 

SEC.  10.  The  local  statutes  authorized  by  this  law  shall  be  passed, 
in  cities  under  the  Revised  City  Law,  by  the  Executive  Branch  of  the 
Local  Council  and  the  Local  Council,  or  [in  cities  where  the  Executive 
Branch  and  Council  are  consolidated]  by  the  Consolidated  Council;  in 
rural  communes  by  the  Council  or  [where  the  local  government  con- 
sists simply  of  an  assembly]  by  the  assembly ;  in  independent  manors, 
on  petition  of  the  owner,  by  the  presiding  officer  of  the  district,  acting 
with  the  Supervisory  Committee,43  and  require  the  ratification  of  the 
Minister  of  the  Interior. 

Differences  of  opinion  between  the  Executive  Branch  and  the  City 
Council  with  regard  to  the  issuance  or  the  content  of  such  a  local 
statute  are  decided  by  the  Minister  of  the  Interior,  after  hearing  the 
District  Committee. 

SEC.  n.     By  identical  resolution  passed  by  the  requisite  repre- 

**  "Bezirksausschuss." 


476  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

sentatives  of  the  communes  and  so  far  as  independent  manors  are 
concerned,  by  agreement  thereto  of  the  owners,  such  local  statutes 
can  be  passed  for  several  communes  or  communes  and  manors. 

SEC.  12.  Local  statutes,  except  in  so  far  as  affected  by  Imperial 
or  state  statute,  may  be  amended  or  repealed  in  the  same  way  as 
passed. 

SEC.  13.  In  cases  of  urgent  necessity  the  supervisory  [state] 
authorities,  in  conjunction  with  the  District41  or  Supervisory  Commit- 
tees, may  require  the  Communal  Council  to  pass  or  amend  local 
statutes  in  accordance  with  the  intent  of  this  law.  The  content  of 
the  local  statute  demanded  in  such  cases  must  fulfill  the  requirements 
of  this  law  and  take  local  conditions  into  account. 

If  the  Communal  Council  in  question  does  not  act  in  accordance 
with  the  demand  so  made  within  a  period  to  be  specified  therein,  the 
Minister  of  the  Interior  may  pass  an  order  to  the  desired  effect,  in 
its  stead. 

SEC.  14.  In  so  far  as  the  regulation  of  building  police  matters  is 
not  specifically  reserved  to  control  by  statutes  passed  by  local  authori- 
ties, they  may  also  be  regulated  by  local  police  ordinance  (sec.  12, 
no.  i  of  the  Organization  Statute  of  April  21,  1873,  sec.  102  of  the 
Revised  City  Law,  sec.  8,  par.  3  of  the  City  Laws  for  Middle  Sized 
and  Small  Cities,  sec.  70,  par.  3,  sec.  84  of  the  revised  (state)  Local 
Government  Law). 

PART  III.      FIXING  AND  EFFECT  OF  CITY  PLAN 

SEC.  15.  When  a  tract  of  land,  for  the  most  part  not  built  on, 
is  opened  up  for  building,  a  "building  plan"  of  it,  fixed  by  local 
statute,  is  as  a  rule  necessary.  Such  a  plan,  however,  can  also  be 
issued  for  lands  already  built  on. 

SEC.  16.  Among  the  matters  to  be  fixed  by  the  building  plan  are 
especially : 

(a)  Building  lines,  within  which  building  on  lots  is  permitted, 
and  by  which  areas  for  public  traffic  or  for  front  gardens,  and  land 
below    high    water    mark,    as    fixed    by    competent    administrative 
authority  or  local  statute  (comp.,  sec.  84)  are  excluded  from  building. 

(b)  The  "character"  of  buildings,*4  the  setback  of  the  building, 
both  from  the  street  line  and  the  neighbor's  line,  the  building  height, 
the  restrictions,  if  any,  against  industrial  works,  and  the  percentage 
of  the  area  of  rear  land  that  may  be  covered  with  buildings. 

(c)  The    fixing    of    water    courses,    drainage    of    the    territory 
planned,  and  the  carrying  of  certain  streets  over  and  under  others. 

SEC.  17.  Building  plans  shall  consist  of  the  necessary  drawings 
and  the  special  building  provisions  to  be  issued. 

""Kreis." 

44 1.  e.,  whether  detached,  semi-detached  or  in  rows. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY       477 

The  more  detailed  provisions  with  regard  to  the  form  of  the  plans 
and  drawings  required  for  a  building  plan  shall  be  contained  in  the 
royal  ordinance  to  carry  this  into  effect48  and  in  local  statutes  and 
regulations. 

SEC.  18.  In  establishing  building  plans  regard  must  be  paid  to 
safety  from  fire,  expected  traffic,  sanitation,  suitable  supply  of  water, 
drainage,  the  situation  and  development  of  the  locality  or  part  thereof 
in  question,  the  local  housing  needs  and  the  protection  of  streets  and 
squares  from  disfigurement.  In  so  doing  especial  attention  is  to  be 
given  to  the  following: 

(cr.)  The  lay-out  of  blocks  and  street  and  building  lines  must  be 
adapted  to  the  topography,  and  so  made  that  abundant  sun  for  the 
living  rooms  is  assured. 

(&)  The  dimensions  of  the  individual  blocks  shall  be  such  as  to 
allow  of  an  advantageous  utilization  of  the  land. 

(c)  The  width  of  streets  and  sidewalks  shall  be   fixed  in  ac- 
cordance with  the  needs  of  traffic   at  the  place   in  question,  being 
greater  in  the  case  of  principal  streets,  and  less  in  the  case  of  side 
and  exclusively  residential  streets.     In  streets  of  detached  buildings 
without  through  traffic,  the  width  of  the  street  need  not  exceed  8  m. 
Where,  later,  through  traffic  (especially  street  car  traffic)  and  there- 
fore street  widening  is  to  be  expected,  front  garden  strips  "  of  appro- 
priate depth  are  to  be  laid  out  on  both  sides.     Private  streets  which 
serve  several  lots  as  entrances  to  the  land  in  the  rear,  shall  not  be  of 
less  than  6  m.   in   width.      Streets   with   detached   buildings   and   a 
moderate  amount  of  through  traffic,  as  well  as  all  streets  with  at- 
tached buildings  in  rows,  are  to  be  laid  out  at  least  12  m.,  and  streets 
with  such  business  or  through  traffic,  at  least  17  m.  in  width. 

(d)  So  far  as  feasible,  grades  of  streets  are  to  be  evenly  dis- 
tributed, sharp  rises,  cuts,  and  causeways,  as  well  as  straight  street 
lines  of  excessive  length,  to  be  avoided. 

(e)  In   fixing  the  direction  of   streets,  care   shall   be  taken  to 
secure  short  and  effective  connections  of  streets  with  each  other  and 
with  the  main  centres  of  traffic. 

(/)  Public  open  spaces  and  planted  areas  are  in  size,  location, 
and  number,  so  to  be  laid  out  as  to  be  in  accord  with  the  needs  of 
traffic  and  general  welfare.  Lots  for  church  and  school  buildings,  as 
well  as  for  public  play  and  recreation  grounds,  are  to  be  provided 
in  sufficient  quantity. 

(#)  In  framing  the  provisions  with  regard  to  the  "character"  of 
building47  and  the  permissibility  of  factories  and  industrial  plants, 
the  hitherto  prevailing  characteristics  of  the  place  or  section,  as  well 

45  To  be  found  in  G.  V.  Bl.,  p.  428. 

48 1.  e.,  setbacks,  the  land  to  be  used  as  a  garden  or  lawn, 

47 1.  e.,  whether  detached  or  attached  in  rows. 


478  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

as  the  existing  needs,  are  to  be  considered.  In  any  case,  however, 
care  shall  be  taken  that  streets  with  attached  buildings  in  rows, 
when  not  forbidden  by  local  law,  are  intermingled  sufficiently  with 
streets  of  detached  buildings,  and  that  in  the  outer  districts  a  suitable 
limitation  of  the  density  of  buildings  and  dwellings  is  provided  for. 

(h)  Front  garden  strips,  when  they  are  not  solely  for  the  later 
widening  of  the  street,  are  to  be  laid  out  with  a  depth  of  at  least 
4-5  m. 

(*')  The  permissible  number  of  stories  is  to  be  determined  in 
each  case  in  accordance  with  the  character  of  the  place  and  the 
breadth  of  the  street.  For  country  places  and  the  country  house  sec- 
tions at  most  three,  elsewhere  at  most  four,  stories  shall  be  per- 
mitted; and  only  in  the  inner  districts  of  the  larger  cities  on  espe- 
cially broad  streets  or  squares  or  when  considerable  assessments  are 
made  on  abutters  for  the  cost  of  regulating  the  course  of  streams 
shall,  as  an  exception,  five  stories  be  permitted.  In  reckoning  the 
number  of  stories,  the  ground  story,  any  half  story,  and  the  roof 
story,  when  it  is  to  be  used  for  residential  purposes,  are  to  be 
included. 

(fc)  The  necessary  courts  and  gardens  in  the  interior  of  a  block 
are  to  be  assured  by  means  of  provisions  with  regard  to  their 
extent  and  location  and,  when  necessary,  by  the  fixing  of  rear  build- 
ing lines. 

(/)  In  so  far  as  building  on  rear  land  is  permitted  at  all  it  is  to 
be  made  dependent  upon  the  size  of  the  court  or  garden,  and  for 
dwelling  purposes  is  as  a  rule  to  be  allowed  only  when,  for  all  the 
windows  of  the  rear  buildings,  an  angle  of  light  of  at  least  45  degrees 
is  secured  and  the  space  between  the  front  and  rear  buildings,  in 
appropriate  cases,  is  developed  with  gardens.  Exceptions  are  per- 
missible under  special  circumstances  in  the  inner  districts  of  larger 
cities.  In  no  case  shall  the  rear  buildings  of  a  street  form  a  con- 
tinuous row  of  attached  structures. 

(m)  In  the  case  of  larger  blocks  suited  thereto,  the  right  may 
be  reserved  to  the  building  police,  on  petition  of  those  interested,  to 
lay  out  later  streets  for  dwellings,  abutting  on  which,  however,  only 
detached  houses  of  at  most  three  stories,  may  be  erected. 

SEC.  19.  The  building  plans  are  to  be  filed  with  the  building 
police  at  least  in  duplicate.  By  local  law  a  larger  number  of  copies 
may  be  required. 

SEC.  20.  If  the  building  plan  is  not  proposed  by  the  municipality 
itself  then  the  building  police  must  without  delay  give  its  decision, 
whether  it  accepts  or  rejects  the  plan  for  further  consideration  in 
accordance  with  section  21  ff.  A  refusal  is  permissible  when  the 
building  plan  is  in  conflict  with  legal  provisions,  or  the  public  wel- 
fare, or  when  the  lands  for  which  the  plan  is  proposed  are  not  owned 
by  the  proposer  of  the  plan.  If  the  plan  is  accepted  by  the  building 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY       479 

police,  then  the  building  police  shall  obtain  the  decision  of  the  munici- 
pal authority  concerned  as  to  its  adoption  by  local  law. 

In  case  of  groundless  delay  in  coming  to  a  decision  or  unwar- 
ranted refusal  of  the  plan,  the  provisions  of  section  13  are  applicable. 
In  the  same  way  the  local  municipal  body  having  authority  may  be 
compelled  to  establish  a  building  plan  when  necessary  to  secure  recon- 
struction of  buildings  destroyed  by  fire,  water,  or  other  elemental 
force  (*here  follow  provisions  with  regard  to  procedure  in  country 
districts,  etc.). 

SEC.  21.  The  building  police  shall,  with  the  aid  of  experts,  ex- 
amine the  building  plan  to  ascertain  that  all  public  interests  are  safe- 
guarded and  the  private  interests  of  those  concerned  provided  for  as 
equitably  as  possible.  The  police  shall  therefore  discuss  these  mat- 
ters with  the  authorities  concerned,  and  also,  as  far  as  they  think 
necessary,  with  any  other  parties  interested;  and  as  a  result  of  the 
examination  or  discussion  shall  cause  the  necessary  changes  in  the 
plans  to  be  made. 

SEC.  22.  The  building  plan  shall  be  open  to  public  inspection  for 
at  least  four  weeks.  Time  and  place  of  inspection  shall  be  publicly 
made  known. 

Objections  to  the  building  plans  shall  be  made  within  four  weeks 
of  the  beginning  of  the  period  for  inspection  or  the  right  to  object 
will  be  forfeited.  Notice  to  this  effect  shall  be  given  in  the  public 
notice  already  referred  to. 

If  the  building  plan  concerns  only  single  tracts  of  land,  then 
instead  of  public  inspection  and  notice,  notice  to  those  concerned 
with  an  allowance  of  at  least  two  weeks  for  objections,  may  be 
substituted. 

SEC.  23.  The  building  police  shall  pass  on  the  objections  raised 
within  the  given  time. 

SEC.  24.  If  no  objections  are  raised  or  they  are  disposed  of  by 
withdrawal,  agreement  or  decision,  the  building  plan  shall  then  be 
submitted  to  the  Ministry  of  the  Interior  for  ratification. 

SEC.  25.  Public  notice  of  the  building  plan  as  ratified,  and  an 
opportunity  for  its  inspection,  shall  be  given  by  the  municipal 
authorities.  Upon  such  notice,  or,  when  this  notice  is  given  more 
than  once,  upon  the  first  notice,  the  building  plan  shall  be  deemed 
to  be  established. 

SEC.  26.  Building  plans  ratified  by  the  Ministry  of  the  Interior 
can  be  added  to  or  changed  only  by  the  same  method  as  that  provided 
for  their  original  establishment.  Immaterial  changes — for  instance, 
small  changes  in  elevations,  or  street  and  building  lines,  the  breaking 
of  street  corners  and  the  like — may  be  ratified  by  the  building  police 
alone,  when,  after  hearing  the  landowners  concerned,  no  objection  is 
raised  by  them. 

*  Summarized. 


480  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

SEC.  27.  In  so  far  as  single  tracts  of  land  on  streets  already  built 
up,  or  a  new  building  district  of  small  extent,  or  a  place  or  section 
of  a  place  without  important  building  development,  is  concerned, 
street  and  building  lines  may  also  be  fixed  by  the  building  police, 
after  hearing  those  interested;  and  when  thereby  burdens  for  the 
municipality  would  be  created,  a  hearing  shall  also  be  given  to  the 
municipal  authorities.  Notice  of  the  adoption  of  the  plan  is  to  be 
given  to  those  interested  and  to  the  representatives  of  the  munici- 
pality, and  such  adoption  is  subject  to  appeal. 

SEC.  28.  In  so  far  as  the  owners  of  land  touched  by  building  and 
street  lines  established  by  local  statute  or  by  the  building  police  have 
not  already  begun  to  build  in  accordance  with  the  plan,  they  acquire 
no  right  to  compensation  on  account  of  a  change  in  it.  A  change  in 
the  building  and  street  lines  already  fixed  shall  be  made  only  when 
weighty  public  interests  are  involved  or  there  is  no  prospect  of  the 
further  execution  of  the  plan  as  it  stands,  and,  furthermore,  where 
buildings  have  been  erected  in  accordance  with  the  plan,  such  a 
change  shall  be  made  only  after  due  regard  has  been  paid  to  these 
buildings  and  a  hearing  given  to  the  owners  of  the  land  on  which 
they  stand. 

SEC.  29.  The  established  building  plan  or  building  and  street  line 
plan  controls  all  building  in  the  territory  planned. 

Nevertheless  the  owner  of  lands  destined  for  public  traffic  areas 
may  use  these  lands  for  other  than  building  purposes  and  enclose 
them  with  necessary  fencing,  until  they  are  surrendered  to  the  mu- 
nicipality. The  owner  is  expressly  authorized,  until  the  municipality 
declares  itself  ready  to  take  these  lands  at  once,  or  the  Ministry  of 
the  Interior  has  given  its  approval  of  their  condemnation,  to  improve 
them  for  cultivation  in  ways  which  raise  their  value.  If,  later,  expro- 
priation or  surrender  for  value  ensues,  the  owner  is  entitled  to  com- 
pensation for  this  increased  value. 

SEC.  30.  When  the  restrictions  on  building  created  by  the  adop- 
tion of  the  plan,  go  into  effect,  land  which  has  not  as  yet  been  built 
over  and  which  according  to  the  plan  is  to  be  used  as  a  street  or 
public  square,  can  no  longer  be  built  on  except  in  so  far  as  this  is 
permitted  in  the  case  of  overhanging  roofs,  balconies,  bay  windows 
and  similar  projections  (comp.  sec.  97)  or  when  a  public  place  is 
expressly  reserved  for  single,  especially  public,  buildings. 

The  erection  of  temporary  buildings,  however,  is  allowed,  but  as 
soon  as  the  land  is  taken  for  the  street  or  public  place,  the  owner, 
without  claim  for  compensation,  must  remove  the  buildings  or  allow 
them  to  be  removed  at  his  expense;  and  also  the  fencing  erected  after 
the  establishment  of  the  plan. 

The  same  is  true  of  the  temporary  use  of  the  surface  destined 
by  the  plan  to  become  front  gardens  or  front  courts.  Temporary 
buildings  and  fencings  shall,  on  the  demand  of  the  building  police,  be 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY       481 

removed  when  the  street  on  which  the  front  garden  or  court  abut  is 
laid  out  and  taken  over  by  the  municipality. 

SEC.  31.  When  an  established  street  or  building  line  strikes  a 
lot  which  has  been  built  on,  then  upon  the  re-erection  of  a  building 
on  the  lot,  or  the  erection  of  additions  to  it,  or  the  increase  of  its 
height,  the  land  is  to  be  cleared  to  the  line  established,  and,  so  far  as 
that  land  is  needed  for  the  street  or  public  place,  to  be  surrendered  to 
the  municipality  on  its  demand.  In  so  far  as  the  municipality  has 
made  no  agreement  to  the  contrary  with  the  owner,  he  is  entitled 
to  recompense  for  the  land  surrendered. 

If  a  building  line,  back  of  the  street  line,  is  established,  the  owner, 
when  in  conformity  to  this  line  he  removes  his  building,  in  so 
far  as  it  projects,  is  entitled  to  any  damage  suffered  by  the  estab- 
lishment of  the  line. 

SEC.  32.  Whenever  a  part  of  a  lot  is  taken  for  public  use  or  its 
use  for  building  restricted  by  the  establishment  of  a  new  or  changed 
line  for  the  rectification  of  a  water  course,  and  the  part  remaining 
or  not  restricted  is  no  longer  under  building  police  regulations,  suit- 
able for  building;  and  thus  there  is  prevented — (a)  the  erection  of 
buildings  on  a  lot  which  has  not  already  been  built  on  but  which  is 
suitable  for  the  purpose  and  abuts  on  an  existing  street  open  for 
public  traffic  and  for  the  erection  of  buildings  on  land  abutting 
on  it,  or  (&)  the  reconstruction  of  a  building  on  a  lot  already  built 
on — then  the  owner  may  require  the  municipality  to  take  and  pay 
for  the  entire  lot.48 

Local  statutes  may  provide  that  and  in  what  cases  streets  which 
mainly  serve  for  traffic  from  place  to  place  (state  or  district  streets 
and  so-called  "communication  roads")  are  not  to  be  regarded  as 
"existing  streets"  in  this  sense. 

SEC.  33.  When  streets  have  been  constructed  on  elevations,  or 
streams  have  been  rectified  on  lines,  established  by  plan,  and,  in 
consequence,  the  owners  of  buildings  erected  on  the  street  before  the 
new  levels  were  so  fixed,  or  on  the  stream  before  the  new  course  was 
so  established,  are  to  their  damage  prevented  from  using  their  prop- 
erty as  heretofore,  or,  to  avoid  such  damage,  are  compelled  to  make 
changes  in  their  buildings,  then  they  are  entitled  to  compensation 
from  the  municipality  for  their  loss. 

SEC.  34.  If  in  the  plan  the  closing  of  a  public  way  is  provided 
for,  the  owner  of  a  lot,  whether  built  on  or  not,  which  abuts  on  this 
way,  and  thus  loses  its  access,  can  demand  from  the  municipality 
sufficient  provision  otherwise  for  his  needs,49  and  if  this  is  not  offered 

48  The    subdivisions    in   this    sentence   and   the    symbols    indicating   the 
same,  not  in  the  law,  were  for  clearness  introduced  by  the  author  in  the 
translation. 

49  Replotting  is  such  a  provision ;  Rumpelt,  Saxon  Building  Law  (4th 
ed.),  p.  151,  note  2;  see  also  sec.  54  and  ff. 


482  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

him  he  has  the  right  to  demand  that  the  lot  be  taken  with  compensa- 
tion. 

In  the  case  of  lots  with  buildings  on  them,  the  taking  may  be  re- 
quired when  a  permit  for  a  new  building  or  a  change,  etc.,  in  the  old 
building,  is  refused  on  account  of  the  prospective  closing  of  the  way. 

SEC.  35.  If  the  establishment  or  change  of  a  building  plan  seems 
advisable,  the  building  police  may  establish  a  building  prohibition 
with  regard  to  the  district  to  be  planned;  with  the  result  that  new 
buildings  or  changes  in  buildings  will  not  be  approved  or  will  be 
approved  only  in  so  far  as  they  do  not  make  the  accomplishment 
of  the  new  planning  more  difficult. 

Public  notice  of  the  establishment  of  the  building  prohibition 
shall  be  given,  with  an  exact  description  of  the  territory  affected  by  it. 

The  building  prohibition  is  legally  in  force  from  the  time  notice 
of  it  is  given,  and  goes  out  of  force  when  the  final  establishment  of 
the  building  plan  is  not  effected  at  least  within  two  years  from  the 
first  notice. 

SEC.  36.  During  the  building  prohibition,  as  well  as  after  the 
establishment  of  the  building  plan,  a  division  of  a  lot  situated  in  the 
area  planned  is  allowed  only  with  the  permission  of  the  building 
police.  This  permission  may  be  refused  when  the  division  affects  a 
building  (a)  if  the  requisite  division  walls  along  the  newly  created 
boundary  are  not  erected  or  (ft)  if,  because  of  the  division,  the  pro- 
visions with  regard  to  the  size  of  courts  and  gardens  are  evaded 
or  the  execution  of  a  building  plan,  or  of  a  replotting  (comp.  Part  V ), 
would  be  prevented  or  made  more  difficult,  or  (c)  if  remnants  un- 
suited  for  building  purposes  would  remain."" 

The  building  police  shall  without  delay  notify  the  authorities  in 
charge  of  land  records  of  the  going  into  effect  of  such  restriction 
on  land  subdivision,  with  an  accurate  statement  of  the  lots  affected 
thereby  and  their  land  register  numbers  and  owners. 

SEC.  37.  If  tracts  of  land  are  used  for  enterprises  for  which 
authority  for  expropriation  is  granted,  then,  on  demand  of  those  en- 
titled to  expropriate,  these  tracts  are  at  once  excluded  from  the  estab- 
lished building  plan,  without  prejudice  to  their  obligation  to  the  public 
with  relation  to  the  construction  of  necessary  traffic  areas,  drainage 
systems,  etc.  In  this  case,  however,  the  land  owners  concerned  in 
the  building  plan  who  by  such  exclusion  suffer  a  loss  or  diminution 
of  rights  secured  to  them  by  the  building  plan,  or  are  subjected  to 
a  greater  burden,  are,  as  a  part  of  the  expropriation,  entitled  to  claim 
indemnification  from  those  entitled  to  expropriate. 

SEC.  38.  When  it  appears  to  be  expedient  for  the  probable  de- 
velopment of  a  place  to  fix  in  advance  the  main  traffic  streets  and 
the  main  features  of  the  drainage  and  water  supply  systems  for  a 

*•  See  note  48. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      483 

larger  building  territory,  then  the  building  police,  after  hearing  the 
local  authorities,  may  establish  a  suitable  extension  plan  for  the 
locality,  in  accordance  with  the  methods  provided  in  sees.  21  to  26. 
This  plan  shall  serve  as  the  basis  for  the  later  individual  building 
plans. 

PART     IV.      PROVIDING    THE    LAND    FOR     BUILDING     AND     MAINTENANCE 
OF    PUBLIC    AREAS    AND    SEWERS 

SEC.  39.  Whoever  builds  on  land  abutting  on  a  street  established 
by  building  or  street  line  plan  must,  to  a  width  of  24  m.  if  the  street 
is  to  be  built  up  on  both  sides,  or  to  a  width  of  15  m.  if  only  on 
one  side,  at  his  own  expense  and  in  the  dimensions  as  planned,  pro- 
vide the  land  for  such  street,  clear  it,  and  without  compensation  sur- 
render it  to  the  municipality  free  of  charges,  mortgages,  and  obliga- 
tions;60 and  also,' in  case  the  municipality  does  not  itself  undertake 
it,  as  provided  in  sec.  43,  ff.,  such  owner  must  himself  construct  such 
street  and  sewer  it ;  but  only  in  so  far  as  the  lot  abuts  on  the  street ; 
and  therefore,  in  the  case  of  corner  lots,  on  both  sides  of  it ;  and 
beyond  his  own  lot  in  so  far  as  necessary  to  extend  the  street  from 
crossing  to  crossing,  and  in  one  direction  from  the  lot  to  be  built 
on,  to  make  connection  with  a  street  already  serving  for  public  traffic. 

SEC.  40.  Whoever  builds  on  land  abutting  on  a  public  square 
must,  in  accordance  with  the  provisions  of  sec.  39,  furnish  the  land 
for  and  construct  that  part  of  the  surface  of  the  square  destined 
by  the  plan  to  be  street,  up  to  24  m.  in  width.  He  must  also  sur- 
render that  part  of  his  land  which  is  situated  in  the  interior  of  the 
square  to  the  municipality ;  and  is  entitled  to  compensation  therefor. 

The  further  construction  of  the  interior  of  the  square  falls  on 
the  municipality  (comp.  sec.  72). 

The  construction  of  the  square  must  take  place  at  latest  when 
the  streets  surrounding  it  are  finished,  the  entire  surface  of  the  square 
is  obtained,  and  at  least  a  third  of  the  frontage  abutting  on  the  square 
is  built  up. 

SEC.  41.  The  provisions  of  sees.  39  and  40  are  also  applicable 
when  and  in  so  far  as  lots  not  built  on  are  situated  on  streets  for 
which,  instead  of  the  street  lines  formerly  in  force,  new  street  lines 
are  fixed.  (Compare  sec.  32.) 

If,  however,  already  existing  buildings  are  struck  by  the  new 
street  lines,  the  provisions  of  sec.  31  are  to  be  applied.  The  obligation 
to  construct  the  driveway  rests,  in  this  case,  upon  the  municipality. 

SEC.  42.     By  local  statute  it  may  be  provided  that  and  to  what 

60  The  obligation  of  the  builder  to  surrender  the  necessary  land  for 
the  street  is  not  a  case  of  expropriation,  but  of  a  condition  upon  the 
fulfilment  of  which  permission  to  build  is  dependent.  Rumpelt,  Saxon 
Building  Law  (4th  ed.),  p.  158,  note  I,  end. 


484  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

extent  the  permanent  enclosure  of  a  lot  shall  be  held  to  be  building 
on  it  within  the  meaning  of  sees.  39-41. 

These  provisions  do  not  apply  to  enclosures  which  are  solely  in 
fulfilment  of  police  obligations. 

SEC.  43.  The  streets  are  to  be  constructed  in  the  width  prescribed 
by  the  building  plan,  in  sections  extending  at  least  from  street  inter- 
section to  street  intersection. 

Where  filling  of  the  road  bed  is  necessary,  the  material  used  shall 
be  free  from  decayed  and  other  stuff  which  would  pollute  the  soil  or 
the  underground  waters. 

Already  existing  dirty  deposits  are  to  be  removed. 

In  other  respects  the  manner  of  constructing  streets,  as  well  as 
the  building  of  sidewalks,  is  left  to  local  regulation. 

SEC.  44.  New  streets  are  as  a  rule  to  be  sewered.  The  costs 
arising  therefrom,  including  those  for  disposal  of  surface  water, 
sewage,  etc.,  fall  to  the  persons  upon  whom  the  costs  for  the  con- 
struction of  the  street  fall  (the  owners  of  the  buildings  on  land 
abutting  on  the  street).  The  kind,  depth,  and  capacity  of  the  sewers 
are  fixed  by  the  building  police,  in  so  far  as  there  are  no  local  statutes 
in  the  matter. 

SEC.  45.  When  the  necessity  arises,  the  construction  of  sewers, 
in  the  manner  prescribed  by  a  sewer  plan  to  be  established,  which 
must  be  approved  by  the  building  police,  shall  be  undertaken  also  for 
parts  of  places  already  built  up. 

On  sewered  streets  every  building  serving  as  a  residence  for 
human  beings  must,  as  a  rule,  be  connected  with  the  sewer. 

SEC.  46.  The  municipality  has  the  right  to  construct  streets, 
bridges,  sewers,  public  wells  and  water  systems,  either  as  contractor 
at  its  own  expense,  reserving  the  right  of  recourse  against  abutters 
building  later  (comp.  sees.  77-78),  or  on  account  of  the  owners  of 
buildings  on  land  abutting  on  the  street.  *  Here  follow  provisions 
with  regard  to  agreements,  estimates,  security,  etc. 

SEC.  47.  Before  the  performance,  however,  of  the  duties  im- 
posed by  sec.  39,  ff.  a  building  permit  may  as  an  exception  be  granted 
when: 

(a)  The  owner  of  the  building,  on  the  demand  of  the  building 
police,  surrenders  without  charge  to  the  municipality  the  portion  of 
his  land  necessary  for  the  construction  of  the  streets  and  squares 
provided  for  in  the  building  or  street  and  building  line  plan,  or 
prospectively  necessary  for  such  purposes ;  or  so  surrenders  the  neces- 
sary land  for  the  widening  of  existing  streets;  and  when  in  addition 
he  furnishes  sufficient  security  for  the  future  fulfilment,  according 
to  law,  of  his  other  obligations. 

(6)  The  connection  of  the  new  building  with  the  built-up  part 
of  the  place  is  satisfactorily  made. 

*  Summarized. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY       485 

(c)  Provision  is  made,  in  accordance  with  the  requirements,  to 
be  prescribed  by  the  building  police,  for  good  and  sufficient  drinking 
and  domestic  water,  as  well  as  for  the  disposal  of  surface  water  and 
sewage. 

As  a  rule  use  shall  be  made  of  the  power  to  grant  such  a  permit 
only  in  the  case  of  structures  for  temporary  purposes,  of  country 
houses,  of  structures  used  for  public  or  public  service  enterprises, 
of  agricultural  buildings,  greenhouses,  storage  structures,  factories 
and  other  industrial  plants,  especially  such  as  in  operation  cause 
noise  or  vibration,  or  use  or  produce  evil  smelling  or  inflammable 
materials. 

SEC.  48.  As  soon  as  a  street  is  constructed  in  accordance  with 
the  plan  and  the  building  ordinances  (see  sec.  43)  and  sewered,  and 
also  one-third  of  the  land  abutting  on  the  street — reckoning  in  both 
sides  of  the  street — is  built  up,  the  street  shall  on  the  petition  of  the 
owners  of  the  buildings,  be  taken  over  by  the  municipality  for  main- 
tenance by  it. 

*  SEC.  49.     Formalities  connected  with  the  inspection  and  accept- 
ance of  the  street  by  the  municipality. 

SEC.  50.  Until  the  municipality  has  taken  over  the  street,  its 
maintenance,  with  its  accessories,  is  the  concern  of  the  owner  of 
the  buildings. 

Any  such  owner  is  bound  thereto  when  at  least  one  building  is 
erected  on  land  abutting  on  the  street.  The  refusal  of  the  munici- 
pality to  take  over  the  street  does  not  entitle  him  to  close  the  street. 

The  obligation  of  maintenance  falls  upon  those  abutters  who 
build  later,  in  the  proportions  prescribed  in  sec.  77,  par.  3. 

SEC.  51.     If  the  municipality  itself  has  constructed  and  sewered 
the  street  at  the  expense  of  the  owner  of  the  building,  its  mainte-  ' 
nance,  provided  the  condition  mentioned  in  sec.  48  has  been  fulfilled, 
is  transferred  at  once  to  the  municipality. 

SEC.  52.  Local  statutes  may  provide  that  the  contributions  de- 
volving upon  the  owner  of  the  building  under  the  foregoing  pro- 
visions shall  wholly  or  partly  be  taken  over  by  the  treasury  of  the 
municipality.  With  regard  to  raising  the  costs  incurred  thereby 
through  assessments  of  buildings,  compare  sec.  78. 

SEC.  53.  By  police  ordinance  the  cleaning  of  streets  and  side- 
walks of  dirt,  snow  and  ice,  as  well  as  the  sprinkling  of  sand  and 
ashes,  etc.,  on  the  sidewalks  in  frosty  weather,  may  be  imposed  upon 
abutters.  *  (Here  follow  provisions  for  procedure  where  a  part 
of  the  street  or  sidewalk  is  in  another  municipality.) 

*  Summarized, 


486  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

PART   V.      REPLOTTING   AND    CONDEMNATION    OF    LAND 

SEC.  54.  When  the  proper  building  development  of  a  tract  of 
land  situated  within  the  limits  of  a  building  plan  is  prevented  or  too 
much  hindered  by  the  position,  form  or  area  of  lots,  a  new  sub- 
division of  the  land  for  the  purpose  of  obtaining  suitable  building 
sites,  may  be  made  through  change  of  boundaries,  or  replotting,  even 
against  the  will  of  the  owners,  if  such  new  subdivision  is  for  the 
public  interest  and  a  petition  therefor  is  made  to  the  building  police, 
either: 

(a)  by  the  municipal  authorities,  or 

(&)  by  more  than  half  the  owners  of  the  lots  involved,  who  to- 
gether own  more  than  half  of  the  total  area  involved. 

SEC.  55.  If  the  replotting  is  necessary  for  lots  whose  buildings 
have  been  destroyed  by  fire,  water  or  other  elemental  force,  the 
representatives  of  the  municipality  can  be  required  to  undertake  the 
replotting  in  the  way  prescribed  in  sec.  13. 

SEC.  56.  Single  lots,  situated  in  the  territory  to  be  replotted, 
which  are  built  on,  or  used  in  a  special  way  (i.  e.,  as  market  gardens, 
nurseries,  etc.),  whose  value  would  make  an  adjustment  with  relation 
to  other  land  much  more  difficult,"  may  be  entirely  or  in  part  excluded 
from  the  replotting.  Even  in  this  case  the  owner  is  subject  to  mere 
corrections  of  boundary  lines. 

SEC.  57.  The  municipal  authorities  shall  establish  a  replotting 
plan  for  the  execution  of  the  work  of  replotting,  with  the  necessary 
provisions  for  carrying  it  out.  This  plan,  however,  may  also  be  pro- 
posed by  those  petitioning  for  the  replotting,  under  sec.  54  b. 

SEC.  58.  The  lots  of  all  those  concerned  shall  be  united  in  one 
mass,  and  the  existing  public  ways  that,  according  to  the  building 
plan,  are  unnecessary,  shall  be  included  in  the  mass.  From  the  mass 
shall  first  be  set  aside  the  lands  destined,  by  the  building  plan,  for 
public  traffic  areas.  The  building  land  thereafter  remaining  shall 
be  so  divided  that  every  landowner  shall  receive  the  same  proportion 
in  value  of  this  remainder  as  he  previously  had  in  the  total  value 
of  the  land  before  it  was  replotted.  The  municipality,  in  place  of 
the  public  ways  by  it  thrown  into  the  mass,  shall  again  receive  public 
traffic  areas.  In  the  appraisals,  which  shall  be  the  basis  of  the  re- 
plotting  plan  and  shall  be  drawn  up  with  the  aid  of  experts,  all  actual 
and  legal  conditions  affecting  the  value  of  the  lands  shall  be  con- 
sidered. 

In  place  of  the  lots,  individually  or  in  combined  area  suited  for 
building  purposes,  are  to  he  assigned  one  or  more  lots,  so  far  as 

*  The  present  value  of  land  used  for  a  market  garden,  for  instance, 
might  he  much  Rreater  than,  in  all  probability,  its  later  value.  Tbe  land 
so  excluded  would  be  liable  for  its  proportion  of  the  cost  of  new  streets, 
etc.  See  Rumpelt,  .S<;.r«>»  /?«i7</i'»i</  Law  (4th  ed.),  p.  181,  note. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      487 

practicable  in  the  same  situation.  Lots  with  buildings  on  them  are 
as  a  rule,  subject  to  the  necessary  adjustment  of  boundaries,  to  be 
assigned  to  their  former  owners. 

Land  which  by  the  building  plan  is  destined  for  streets,  in  so  far 
as  it  is  not  at  once  used  for  the  purpose,  shall,  after  the  construction 
of  the  necessary  agricultural  ways  for  the  newly  subdivided  lots,  be 
divided  among  the  individual  owners  in  the  same  proportion  as  the 
building  land;  and,  so  far  as  practicable,  so  that  to  each  lot  its  future 
building  land  and  its  part  of  the  future  street  land  shall  be  united. 

Unavoidable  differences  of  value  between  the  former  land  and 
that  obtained  by  the  exchange  may  be  equalized  by  granting  or  re- 
quiring a  money  indemnity. 

SEC.  59.  Lots  whose  areas  are  too  small  for  building  purposes, 
in  so  far  as  a  satisfactory  outcome  cannot  be  attained  by  agreement 
of  those  concerned,  shall  be  surrendered,  with  compensation,  to  the 
municipality,  which,  in  return  for  repayment  of  the  sum  paid  for 
their  surrender,  shall  divide  them  among  the  other  owners. 

SEC.  60.  The  building  police  shall  in  the  first  instance  enter  into 
negotiation  with  all  the  parties  affected  by  the  proposed  replotting 
plan  and  endeavour  to  obtain  their  agreement  to  it.  Among  those 
interested  are  included  also  owners  of  lands  outside  the  tract  re- 
plotted  which  have  a  servitude  on  the  land  replotted.  If  an  agreement 
is  reached,  the  replotting  plan  can  at  once  be  submitted  to  the  Min- 
istry of  the  Interior  for  ratification.  In  this  case  no  further  proof  of 
public  interest  is  necessary. 

SEC.  61.  If  no  agreement  of  all  concerned  is  reached,  then  the 
replotting  plan  is  first  to  be  laid  before  the  Ministry  of  the  Interior 
for  its  information  and  preliminary  examination.  After  the  adjust- 
ment of  the  objections  thus  raised,  the  plan  is  to  be  exhibited  in  the 
same  manner  as  the  building  plan.  The  provisions  of  sees.  21  to  25, 
are  then  to  be  followed,  as  applicable. 

SEC.  62.  The  drawing  up,  submission,  exhibition  and  approval 
of  the  replotting  plan  may  be  combined  with  that  of  the  necessary 
building  plan.  The  execution  of  the  replotting  plan  must  be  subse- 
quent to  the  fixing  of  the  building  plan. 

SEC.  63.  With  the  establishment  of  the  replotting  plan,  the  newly 
assigned  lot  takes  the  place  of  the  surrendered  lot  with  respect  to 
all  rights  of  ownership,  use,  and  other  real  rights,  as  well  as  also 
with  respect  to  all  public  burdens,  with  the  exception  of  the  contribu- 
tions to  be  paid,  under  the  law  of  August  15,  1855  (G.  V.  Bl.,  p.  483 
ff.),  with  regard  to  the  construction  and  maintenance  of  a  water 
course;  the  new  lot  receiving  all  the  legal  attributes  of  the  old  lot. 
Incumbrances,  etc.,  remain,  so  far  as  they  are  not  removed  .or  changed 
by  the  replotting.  The  replotting  may  also  impose  new  incumbrances. 

SEC.  64.  The  acquisition  of  land  in  consequence  of  replotting  is 
free  from  transfer  taxes. 


4S8  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

SEC.  65.  When  the  erection  of  buildings  in  the  interior  of  the 
block  would  prevent  the  advantageous  replotting  of  the  lot  or  make 
it  materially  more  difficult,  then  such  erection  may  be  forbidden. 
This  building  prohibition  expires  when  the  replotting  plan  is  not  estab- 
lished within  two  years. 

SEC.  66.  In  order  to  obtain  less  considerable  changes  of  boun- 
daries without  recourse  to  the  replotting  procedure,  the  building 
police  may  make  the  building  permit  conditional  upon  the  acquisition 
or  surrender  by  the  owner  of  the  building  of  smaller  strips  of  land 
necessary  for  rounding  out  his  own  or  a  neighbor's  building  lot. 

This  procedure  is  especially  applicable  to  cases  where,  in  conse- 
quence of  the  abolition  of  a  street  line,  land  formerly  part  of  the 
street  becomes  part  of  the  building  land. 

SEC.  67.    When 

(a)  for  the  broadening,  straightening,  or  continuation  of  streets, 
ways  and  squares,  destined  for  the  inner  traffic  of  a  municipality, 

(&)  for  the  laying  out  and  the  cutting  through  of  the  same, 

(c)  for  the  building  and  broadening  of  bridges, 

(d)  for  shore  and  dam  structures, 

(e)  for  the  construction  of  sewers  and  water  works,  for  the  con- 
nections of  the  same  with  the  individual  lots  and  the  connection  of 
sewers  with  those  of  neighboring  communities, 

(/)  for  the  enlargement  or  merger  of  building  areas  not  suitable 
for  building  purposes,  in  the  solidly  built  up  part  of  the  locality, 

land  must  be  acquired  or  a  servitude  on  land  imposed — then  on  pe- 
tition of  the  representative  of  the  municipality,  to  be  made  through 
the  building  police,  with  the  approval  of  the  Ministry  of  the  Interior, 
against  the  wishes  of  the  landowners  concerned,  if  necessary,  the  re- 
quired land  may  be  condemned,  with  compensation,  or  the  servitude 
imposed,  in  so  far  as  this  appears  to  be  for  the  public  interest. 

SEC.  68.  When  the  tearing  down  of  buildings  or  groups  of  build- 
ings, in  the  interest  of  traffic  or  the  public  health,  is  indispensable, 
or  the  building  plan  for  a  tract  of  land  whose  buildings  were  de- 
stroyed by  fire,  water,  or  other  elemental  force  cannot  otherwise  be 
carried  out  in  such  a  manner  as  to  avoid  similar  dangers  in  the  future, 
then  the  Ministry  of  the  Interior,  on  petition  of  the  municipal  au- 
thorities, is  authorized  to  grant  permission  to  condemn  the  entire  tract 
necessary  to  a  suitable  execution  of  the  undertaking. 

SEC.  69.  To  the  petition  for  the  permit  to  expropriate  there  is 
to  be  annexed  the  building  plan,  or,  if  the  proceeding  does  not  in- 
volve such  a  plan,  a  special  expropriation  plan. 

SEC.  70.  Before  handing  in  the  petition  to  the  Ministry  of  the 
Interior,  the  building  police  shall  endeavour  to  obtain  an  amicable 
agreement. 

SEC.  71.  After  the  issuance  of  the  permit  for  condemnation,  the 
land  owners  concerned,  within  a  time  to  be  fixed  by  the  Ministry 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      489 

of  the  Interior,  have  the  right,  in  the  cases  covered  by  sec.  68,  them- 
selves to  construct  on  their  lots  the  new  buildings  provided  for  by 
the  building  or  condemnation  plan.  After  the  expiration  of  the  time 
so  fixed,  the  expropriation  of  these  lots  or  areas  on  which  the  de- 
velopment as  planned  has  not  been  carried  out,  follows. 

SEC.  72.  The  municipality  may  by  local  laws  be  given  the  right 
to  demand  the  immediate  condemnation  of  the  area  for  a  public 
square,  as  laid  out  by  the  building  plan  established  by  local  law. 

SEC.  73.  The  condemnation,  as  well  as  the  fixing  of  the  com- 
pensation therefor,  shall  be  done  by  the  building  police;  or,  when  a 
municipality  is  concerned  whose  local  authorities  are  also  building 
police,  by  a  representative  of  the  Ministry  of  the  Interior. 

The  condemnation  must  be  preceded  by  a  conference  on  the  spot 
with  those  interested,  to  which  the  necessary  experts  for  the  fixing 
of  the  compensation  shall  be  summoned. 

SEC.  74.  The  building  police  shall  request  the  land  record  au- 
thorities to  make  the  entries  in  the  land  records  which  are  necessary 
by  reason  of  the  establishment  of  the  replotting  plan  or  of  condemna- 
tion. 

SEC.  75.  When  the  lots  to  be  surrendered  by  reason  of  a  re- 
plotting  or  condemnation  plan  are  built  up  with  dwelling  houses  or 
are  to  be  regarded  as  built-up  lots  (comp.  sec.  5),  then  the  munici- 
pality on  demand,  so  far  as  practicable,  shall  give  the  owners  the 
opportunity  to  acquire  another  building  lot  in  the  neighborhood  at 
a  suitable  price. 

The  municipality  shall  take  the  same  care  that  the  occupants,  who 
must  leave  a  house  in  consequence  of  a  replotting  or  condemnation, 
shall  find  suitable  accommodations. 

PART   VI.      INDEMNITIES,    RIGHTS    OF    RECOURSE   AND    BUILDING 

ASSESSMENTS 

*  SECS.  76-78.    Whoever  has  duly  laid  out  and  paid  for  a  street, 
with  bridges,  sewers,  etc.,  is  entitled  to  recover  the  expenses  from 
abutters   on   the    street   subsequently   building   on   it,    in   proportion 
to  their  frontage.     He  also  may  recover  if  an  existing  building  by 
reason   of   the    street   improvement   obtains   window   openings,   per- 
missible by  reason  of  the  new  street,  sewers,  an  exit  to  the  street, 
etc.     If  a  new  building  may  be  built  more  advantageously,  cheaply, 
or  of  greater  area  or  height,  he  may  recover  in  proportion  to  the 
increase   in  value  of  the   builders'   land.     These   payments   are   en- 
forced by  refusal  of  building  permit,  unless  paid  or  secured.     Local 
statute  may  authorize  the  municipality  to  recover  for  all  street  con- 
struction and   improvements,   and  also   for  building,   replotting   and 
condemnation  plans,  as  well  as  for  payments  made  under  the  build- 

*  Summarized. 


490  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ing  law,  not  otherwise  repaid.  These  recoveries  may  be  had,  in  full 
or  in  part,  as  payments  for  the  right  to  build,  from  those  materially 
benefited.  The  amount  may  be  determined  according  to  frontage  or 
according  to  the  method  of  building,  especially  the  area  built  over, 
the  number  of  stories,  and  the  number  of  families  provided  for. 

PART  VII.      BUILDING   ON   THE   LOT 

A.  General  Requirements 

*  SECS.  79-89.  The  lot  must  furnish  a  firm  foundation,  free  from 
rubbish,  etc.;  have  water  facilities;  be  on  a  street  established  by 
public  plan,  or  on  an  existing  way,  or  have  access  secured  to  the 
builder.  (Exceptions  may  be  allowed  by  the  building  police);  be 
above  high  water  mark  and  not  encumber  the  bank  of  a  stream,  etc.; 
not  interfere  with  railroads;  not  be  a  nuisance  to  neighboring  land  by 
reason  of  smoke,  etc.  Local  statute  may  prescribe  that  and  in  how 
far  single  parts  of  localities  shall  be  specially  devoted  to  industrial 
works,  and  that  in  other  parts  such  works  shall  not  be  allowed  at 
all  or  only  under  special  restrictions  (sec.  23,  par.  3  of  the  National 
Industrial  Ordinance)  ;M  shall  not  be  too  near  state  forests;  protec- 
tion of  neighbor  in  building;  use  of  neighbors'  land  for  scaffolding, 
etc 

B.  Erection  of  Buildings 

SEC.  90.  The  construction  and  the  internal  arrangements  of  the 
building  must  not  endanger  the  safety  and  health  of  the  occupants. 
Dwelling  and  work  rooms  must  be  sufficiently  dry  and  accessible, 
of  sufficient  size,  and  have  a  sufficient  supply  of  light  and  air. 

By  local  statute  special  higher  architectural  requirements  for 
buildings  to  be  erected  may  be  made  for  particular  streets  or  parts 
of  streets. 

SEC.  91.  The  provisions  contained  in  sees.  94  to  138  shall  govern 
except  in  so  far  as  superseded  by  local  statute. 

SEC.  92.  In  the  case  of  buildings  in  independent  manorial  pre- 
cincts outside  of  inhabited  places,  in  the  smaller  places  in  which 
for  the  most  part  agriculture  is  pursued,  and  in  places  with  for  the 
most  part  a  poorer  population,  the  building  police  may,  even  where 
not  otherwise  expressly  allowed  by  this  law,  grant  exceptions  to  the 
provisions  of  sees.  94  to  138,  provided  the  necessary  regard  is  paid 
to  safety  and  health.  *  (Here  follow  provisions  with  relation  to 
the  drawing  up  by  the  local  authorities  of  a  list  of  such  places,  the 
giving  of  notice  of  the  beginning  of  changed  conditions,  and  the 
revisions  of  lists  by  the  higher  authorities.) 

*  Summarized. 
"See  p.  210,  note  i. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      491 

SEC.  93.  The  building  police  may  also  grant  exceptions  to  sees. 
94  to  138  for  single  buildings  at  a  distance  from  built  up  localities 
when  there  is  no  prospect  of  a  further  building  development  of  the 
land  round  about  within  a  reasonable  time. 

The  building  police  may  also  impose  additional  requirements 
appropriate  to  the  peculiar  character  of  and  dangers  incident  to  the 
use  of  church,  school,  factory,  large  warehouse,  and  business  struc- 
tures, theatres,  concert,  dance,  and  assembly  rooms,  the  larger  hotels, 
and  simi-lar  buildings  in  which  large  numbers  of  people  assemble,  as 
well  as  for  steam  boilers,  machine  shops,  elevators,  etc.  Through 
ordinances  to  carry  these  provisions  into  effect  or  local  police  ordi- 
nances, general  provisions  may  be  issued  with  regard  to  these  matters. 

SEC.  94.  Local  statutes  shall  provide  whether  buildings  shall  be 
detached  or  in  attached  rows.  In  rural  districts,  and  country  house 
suburbs,  for  which  there  is  no  local  statute,  only  houses  with  an  open 
space  on  each  side,  or  double  or  group  house^  are,  as  a  rule,  per- 
missible. Nevertheless  exceptions  may  be  allowed,  especially  for 
factories,  agricultural  court  yards  and  the  workmen's  houses  built 
for  the  same,  and  state  and  public  service  enterprises. 

SEC.  95.  In  the  case  of  detached  buildings  the  open  space  be- 
tween two  front  buildings  shall  be  at  least  equal  to  the  height  of 
the  principal  cornice  of  the  higher  building,  the  open  space  between 
the  building  and  the  boundary  line,  at  least  equal  to  half  of  the 
height  of  its  own  highest  cornice,  and  as  a  rule  not  less  than  4  m. 

In  the  case  of  corner  lots  and  lots  contiguous  to  them,  as  well 
as  in  case  of  common  courts  (compare  sec.  101),  exceptions  are 
permissible. 

Where  the  height  of  the  principal  cornice  is  less  than  the  highest 
point  of  vertical  projection  of  the  building,  the  height  of  the  build- 
ing shall  be  measured  from  this  highest  point.  But  such  projections, 
when  and  in  so  far  as  they  do  not  exceed  one-third  of  the  depth 
of  the  building,  shall  not  be  taken  into  account. 

SEC.  96.  In  attached  row  building,  the  buildings  are  as  a  rule 
to  be  constructed  without  any  space  between  them.  Exceptions  are 
permissible  where  the  space  is  at  least  10  m.  in  width,  if  care  is  taken 
that  the  street  is  not  disfigured  by  rough  party  walls. 

SEC.  97.  Projections  such  as  pillars,  porches,  and  similar  struc- 
tures, not  more  than  25  cm.  over  the  street  line,  are  permissible  in 
streets  at  least  12  m.  broad;  but  the  combined  width  of  these  pro- 
jections must  not  exceed  half  the  width  of  the  entire  building.  The 
projection  of  bay  windows,  balconies,  etc.,  over  the  street  line  should 
not  exceed  1.50  m.  and  shall  not  be  less  than  3  m.  above  the  walk. 
Projections  at  ground  floor  height  are  permissible,  subject  to  revoca- 
tion, up  to  a  third  of  the  width  of  the  front  of  the  building  in  the 
case  of  attached  buildings  in  rows,  and  up  to  a  half  in  the  case  of 
detached  buildings.  But  on  the  suppression  of  the  front  garden  they 


492  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

are  to  be  reduced,  without  right  of  compensation,  to  the  permissible 
projection  on  streets. 

Windows  and  other  light  openings  which  give  in  a  straight  line 
on  a  neighboring  lot,  either  built  up  or  serving  as  court  or  house 
garden,  as  well  as  bay  windows,  balconies,  or  similar  structures,  on 
the  side  toward  a  neighboring  lot,  must  be  at  least  4  m.  distant  from 
the  boundary. 

SEC.  98.  Buildings  situated  on  streets  must  not  be  more  than 
22  m.  high  (compare  sec.  95) ;  nor,  as  a  rule,  shall  the  height  of 
the  building  exceed  the  width  of  the  street,  including  any  front  gar- 
dens. In  case,  however,  of  particular  parts  of  buildings  set  back 
from  the  building  line,  a  greater  building  height  may  be  permitted. 
Vertical  roof  projections  (gables,  towers,  dormers,  and  the  like) 
shall  not  materially  exceed,  in  their  total  width,  half  the  length  of 
the  building  front  of  which  they  are  a  part.  Structures  in  the  in- 
terior of  a  city  may  be  rebuilt  to  their  former  height  when  also 
material  improvements,  particularly  in  respect  to  courts,  are  made 
at  the  same  time,  either  on  the  lot  itself  or  in  the  neighborhood. 

In  the  case  of  streets  with  buildings  only  on  one  side,  greater 
heights  than  in  accordance  with  the  street  width  are  permissible. 
Buildings  between  two  streets  of  different  width  (e.  g.,  corner  houses) 
must,  as  to  the  front  on  each  street,  conform  in  height  to  the  width 
of  that  street ;  but  as  a  rule  the  greater  building  height  can  be  carried 
around  the  corner  along  the  narrower  street  not  more  than  16  m. 
in  length. 

SEC.  99.  The  number  of  stories  (in  which  number  the  ground 
floor,  any  mezzanine  or  other  intermediate  stories,  as  well  as  roof 
stories  with  living  rooms  in  them  are  included)  shall,  in  rural  places 
and  rural  sections  as  well  as  in  places  where  previously  in  general 
there  have  not  been  higher  buildings,  have  not  more  than  three 
stories;  otherwise  not  more  than  four.  But  in  the  interior  of  a  city  of 
more  than  50,000  inhabitants,  as  well  as  on  especially  wide  streets,  on 
open  squares,  rectified  water  courses  and  similar  open  spaces,  which 
have  imposed  material  expenditure  on  the  abutting  landowners,  five 
stories  may  be  permitted. 

SEC.  100.  In  front  of  or  behind  buildings  there  must  remain,  as 
the  property  of  the  owner  of  the  buildings  and  of  his  legal  successors, 
vacant  land  (courts,  gardens)  of  such  extent  as  to  furnish  the  sur- 
rounding buildings  with  the  necessary  access  for  light  and  air,  and 
with  necessary  space  and  access  for  fire  and  life-saving  apparatus. 
For  these  purposes  there  shall  be  left,  immediately  in  front  of  or 
behind  every  dwelling  house,  a  free  court  space  or  garden  sufficient 
for  these  demands,  the  depth  of  which  shall  at  least  equal  the  height 
of  the  building  (sec.  95).  The  erection  of  small  single  story  build- 
ings for  use  as  laundries,  wood  sheds  and  for  minor  domestic  purposes, 
sheds,  garden  houses,  and  the  like,  which,  together,  shall  not  occupy 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY       493 

more  than  a  quarter  of  the  space  to  be  left  free,  shall  not  be  con- 
sidered as  building  over  the  same.  In  the  case  of  corner  houses, 
factories  and  agricultural  courtyards,  as  well  as  of  the  building  or 
rebuilding  of  houses  in  parts  of  localities  already  built  up,  the  build- 
ing police  may  allow  such  exceptions  as  the  circumstances  demand. 

SEC.  101.  When  the  owners  of  two  or  more  neighboring  lots 
within  the  same  block,  enter  into  mutual  agreements  in  conformity 
with  the  provisions  of  sec.  2,  ff.  to  keep  open  given  parts  of  their 
land  (common  court),  then  these  parts  may  be  reckoned  together, 
and  thereby  the  requirements  of  sec.  100  fulfilled  without  regard 
to  ownership. 

SEC.  1 02.  On  condition  that  the  requirements  of  sec.  100  are 
fulfilled  attached  dwelling  houses  may  be  erected  in  rows  to  a  depth 
of  16  m.  and  detached  buildings  to  a  depth  of  20  m. 

SEC.  103.  The  building  police  may  permit  not  more  than  half 
the  area  of  a  court  prescribed  in  sec.  100  to  be  roofed  over  to  a 
height  not  to  exceed  6  m.  if  the  light  of  the  windows  of  the  first 
story  is  not  thereby  impaired. 

Light  courts  must  have  an  area  of  at  least  10  square  m.  with  2 
m.  least  horizontal  dimension,  and  a  glass  roof  that  in  all  weathers 
allows  sufficient  access  of  light  and  air  and  that  is  provided  with 
sufficient  ventilating  arrangements.  If  two  neighboring  light  courts 
are  situated  next  to  one  another,  without  a  high  division  wall  on  the 
boundary  line,  the  surface  of  the  two  light  courts  may  be  reckoned 
together  in  passing  on  their  permissibility  if  the  owners  contract  in 
accordance  with  sec.  2  ff.  to  retain  them.  Neighboring  windows, 
opposite  one  another  on  such  a  common  court,  must  however,  be 
distant  from  each  other  horizontally  at  least  3.5  m. 

On  light  courts,  as  a  rule,  rooms  other  than  stair  walls,  entrances, 
connecting  corridors,  closets,  small  bathrooms  and  toilets,  are  not 
permitted. 

The  bottom  of  the  light  court  must  at  all  times  be  accessible,  water 
tight  and  connected  with  the  sewer. 

Light  shafts  (shaftlike,  mostly  glassed  over  cuts  in  the  body  of 
the  building  that  are  used  to  introduce  light  into  single  rooms  directly 
under  one  another,  through  the  roof,  and,  as  necessary,  through  one 
or  more  stories,  without  at  the  same  time  serving  for  necessary  venti- 
lation) shall  as  a  rule  not  extend  to  the  surface  of  the  ground  floor. 

SEC.  104.  Side  and  rear  buildings  shall  be  erected  only  in  con- 
formity with  the  provisions  in  sec.  100  and  not  higher  than  the  front 
buildings  to  which  they  belong.  They  must  extend  only  to  one  side 
boundary  and,  so  far  as  they  are  not  on  the  boundary,  shall  be  back 
from  it  at  least  4  m. 

Rear  buildings  of  less  than  4.5  m.  in  height  to  the  cornice,  may 
be  erected  immediately  on  the  rear  lot  boundary,  unless  this  touches 
a  public  street. 


494  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

*  SECS.  105-113.     Structural  provisions.*** 

*  SEC.  114.     Required  stairs. 

SEC.  115.  Dwelling  and  work  rooms,  and  generally  all  rooms 
which  serve  for  a  considerable  period  for  the  occupation  of  human 
beings,  shall  have  a  clear  height  of  at  least  2.85  m. ;  or,  under  rural 
conditions,  of  at  least  2.25  m. 

The  height  of  vaulted  rooms  shall  be  measured  to  the  highest 
point  of  the  intrados.  By  local  statute  minimum  requirements  of 
space  and  other  conditions  for  dwelling  and  especially  for  lodging 
rooms  may  be  fixed. 

SEC.  116.  Royal  ordinance  or  local  statute  shall  regulate  the  con- 
struction of  dwelling  rooms  in  the  roof.  Cellar  dwellings  are  per- 
missible only  in  those  places  in  which  they  already  exist,  and  only  in 
so  far  as  they  fulfil  the  conditions  and  health  requirements  set  up  by 
local  statute. 

SEC.  117.  The  rooms  planned  for  the  continued  stay  of  human 
beings  must  be  provided  with  sufficiently  large,  suitably  situated  win- 
dows, made  to  open.  The  windows  must  open  immediately  into  the 
open  air,  except  in  so  far  as  single  rooms,  in  accordance  with  sec.  103, 
par.  3,  may  be  situated  on  a  light  court.  Local  statute  may  fix  the 
size  of  the  windows. 

*  SEC.  118.    Prescribed  wash  room,  with  kettle  and  heating  ar- 
rangements, in  cellar  of  houses  constructed  to  rent  to  more  than  three 
families. 

*  SECS.  119-132.     Structural  provisions.** 

SEC.  133.  For  every  independent  dwelling,  for  every  workshop, 
and  so  far  as  practicable,  for  every  store,  a  separate  toilet  shall  be 
constructed,  which,  when  feasible,  shall  be  located  on  the  north  side 
of  the  house,  but  not  toward  the  street.  As  a  rule  it  shall  be  on  the 
same  floor  as  the  dwelling,  shop,  etc.  It  shall  be  sufficiently  lighted 
and  ventilated,  and  not  less  than  0.80  x  I  m.  in  width  and  breadth. 

Every  toilet  room  shall  be  provided  with  one  window,  opening 
immediately  upon  the  outer  air  and  easy  to  open.  *  (Here  follow 
provisions  as  to  plumbing,  etc.) 

*  SECS.  134-138.     Structural  provisions.*** 

*  Summarized. 

**  These  provisions  cover,  among  other  matters,  strength  of  con- 
struction, materials  for  roofs,  projections  and  stairs,  protection  against 
dampness  and  fire,  adaptation  of  walls  to  the  purposes  of  the  building, 
foundations  and  cellars,  party-walls,  etc. 

**  Refer  particularly  to  construction  of  chimneys,  their  material,  height, 
dimensions,  and  relation  to  the  walls  of  the  building;  the  construction  of 
stoves  as  well  as  of  the  chimneys  and  flues  is  specified  in  great  detail. 

**  Deal  with  privies,  drains,  cesspools,  plumbing,  stables  and  disposal 
of  ashes.  Local  laws  may  forbid  the  inclusion  of  stables  in  residences ; 
otherwise  their  construction  is  carefully  regulated.  All  the  other  provi.siuns 
are  mandatory. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      495 

*  PART  VIII.      PROVISIONS  TO  INSURE  SAFETY  DURING  CONSTRUCTION 
*  PART  IX.      POLICE  INSPECTION  OF  BUILDINGS 

*PART   X.      FEES 
*  PART   XI.      TEMPORARY  PROVISIONS  AND  REPEALS 

No.   4.      PLANNING   PROVISIONS    OF   THE    DUTCH    HOUSING   LAW  M 
SECTION    5.      EXPROPRIATION 

ART.  26. — i.  The  Expropriation  Law  of  August  28,  1851,  as  last 
amended  April  15,  1886,  is  hereby  amended  by  adding  thereto  a  Title 
IV.  to  be  called  "Expropriation  in  the  Interest  of  the  Housing  of  the 
People" — and  to  read  as  follows : 

ART.  77.  Without  a  previous  statutory  declaration  of  public 
utility,  expropriation  may  occur  in  the  interest  of  the  housing  of 
the  people  for  the  following  purposes : 

(1)  To  clear  lots  for  which,  because  of  insufficient  access  of  light 
and  air  or  the  lack  of  other  necessities  for  dwelling  purposes,  an 
adequate   improvement  on  account   of  the   location  of   the   building 
or  its  connection  with  other  buildings  can  in  other  ways  with  diffi- 
culty if  at  all  be  attained. 

(2)  To  remove  one  or  more  dwellings  whose  adequate  improve- 
ment as  to  their  situation  or  connection  with  one  another  or  with 
other  dwellings  or  other  buildings  can  with  difficulty  if   at  all  be 
attained. 

(3)  To  remove  one  or  more  dwellings  which,  whether  suited  or 
intended  for  residence  or  not,  prevent  dwellings  next  or  near  them 
from  being  put  into  condition  suitable  for  residential  purposes. 

(4)  To  obtain  control  over  lots,  whether  built  upon  or  not,  in 
order  that  an  established  building  plan  in  the  interest  of  the  housing 
of  the  people  or  an  extension  plan  proposed  under  sec.  6  of  the 
housing  law  may  be  carried  out. 

In  the  above  named  cases  expropriation  shall  be  in  accordance 
with  the  provisions  of  the  following  articles : 

*  Summarized. 

53  Enacted  June  22,  1901 ;  amended  in  particulars  not  important  in  this 
connection  in  1902,  1903,  1005,  1906,  1907,  1913,  1915,  1917,  1919;  for  the 
law  and  the  amendments  to  it,  in  Dutch,  see  the  session  laws  of  the  years 
named.  A  translation  into  German  of  the  entire  law  will  be  found  in 
the  Proceedings  of  the  Sixth  International  Housing  Congress,  Diissel- 
dorf,  1902,  p.  425.  A  good  account  of  the  law  and  housing  and  planning 
in  Holland  generally,  with  a  German  translation  of  the  entire  law,  is 
given  by  Rudolph  Eberstadt  in  his  Neue  Studien  (Gustav  Fischer,  1914), 
Vol.  2,  p.  359. 


496  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ART.  78.  Both  the  municipality  and  societies,  joint  stock  corpo- 
rations and  foundations  whose  activities  are  confined  exclusively  to 
the  improvement  of  housing  and  who  are  authorized  thereto  by  the 
Crown,  after  hearing  the  Provincial  Committee,  may  avail  themselves 
of  the  right  of  expropriation. 

The  conditions  for  granting  such  permission  shall  be  fixed  by 
the  state. 

ART.  79.  Except  as  provided  in  art.  87,  expropriation  in  the 
interest  of  the  housing  of  the  people  occurs  on  resolution  of  the  City 
Council,  with  Royal  ratification,  after  hearing  the  upper  or  executive 
branch  of  the  City  Council.  *(Here  follow  procedural  provisions.) 

ART.  87.  When  the  city  council  refuses  the  request  for  expro- 
priation by  a  society  or  foundation,  the  petitioner  may  apply  to  the 
Crown.  *(Here  follow  procedural  provisions.) 

ART.  93.  When  the  building  to  be  expropriated  is  declared  unfit 
for  habitation,  an  estimate  shall  be  made  of  the  value  of  the  land 
and  of  the  building  materials,  if  the  building  cannot  be  used  for  any 
other  purpose.  When  the  building  can  be  used  for  other  than  resi- 
dential purposes,  the  amount  paid  shall  be  the  value  of  the  land  and 
of  the  building  materials  plus  the  amount  that  seems  just  in  con- 
sideration of  the  additional  advantages  which  the  owner  could  have 
obtained  from  such  a  use.  In  this  connection  art.  92  applies. 

When  only  a  part  of  the  building  to  be  expropriated  is  declared 
unfit  for  habitation,  this  fact  shall  be  taken  into  consideration  in 
arriving  at  the  value.  The  fact  that  the  part  declared  unfit  for  habi- 
tation is  or  is  not  still  fit  for  other  uses,  shall  also  be  considered. 

ART.  94.  When  a  demand  under  art.  14  of  the  Housing  Law  has 
been  made  for  improvements  without  result,  then  the  value  to  be 
paid  shall  be  that  of  the  building  as  it  would  have  been  if  improved 
less  the  cost  of  making  the  improvements. 

When  the  building  is  occupied  by  a  greater  number  of  persons 
than  is  lawful  under  local  ordinances,  the  increase  of  rents  by  reason 
of  such  excess  shall  not  be  taken  into  account. 

SECTION  6.      EXTENSION    PLANS 

ART.  27. — i.  The  City  Council  is  authorized  in  the  interest  of 
systematic  building  development  to  forbid  buildings  to  be  erected  or 
reerected  in  a  place  that  by  previous  resolution  of  the  City  Council 
is  destined  in  the  near  future  to  be  a  street,  canal  or  square. 

2.  In  a  resolution  containing  a  prohibition  against  building  it 
shall  be  stated  what  parts  of  the  land  belonging  to  one  owner  the 
prohibition  includes;  and  if  the  prohibition  covers  more  than  l/$  of 
his  land  included  in  the  plan,  the  reasons  are  to  be  given  why  pur- 
chase or  expropriation  does  not  occur  at  once. 

*  Summarized. 


ADMINISTRATION  IN  ITALY,  SWEDEN  AND  GERMANY      497 

*3. — 6.  Appeal,  notice,  opportunity  for  inspection,  confirmation, 
etc. 

ART.  28.  In  municipalities  containing  more  than  ten  thousand 
inhabitants  and  those  whose  population  has  increased  more  than  1/5 
in  the  last  five  years,  the  City  Council,  subject  to  ratification  by  the 
Provincial  Committee,  shall  establish  an  extension  plan,  in  which  the 
land  shall  be  indicated  that  is  destined  in  the  near  future  for  streets, 
canals  or  squares. 

2.  The  plan  shall  be  revised  at  least  once  in  every  ten  years. 

3.  The  extension  plan  and  the  plans  for  its  revision  shall  be  sub- 
mitted to  the  Provincial  Committee.     From  a  refusal  to  ratify  it  the 
City  Council,  and  from  its  ratification  private  parties  interested,  may 
appeal  to  the  Crown  within  a  month. 

*4. — 6.     Notice,  opportunity  for  inspection,  etc. 

*  7.     Issuance  of  regulations  to  carry  these  provisions  into  effect. 

*  Summarized. 


CHAPTER  II. 

PLANNING  ADMINISTRATION  IN  ENGLAND, 
CANADA  AND  FRANCE 

Planning  in  England  Prior  to  1909. — Before  1909  there 
was  little  planning  law  in  England.  No  provisions  existed  for 
the  preparation  of  community  plans,  or,  if  made,  for  their 
adoption  as  a  rule  of  action  for  the  authorities;  nor  for  the 
protection  of  projects  for  the  future  construction  of  streets  and 
other  public  features  from  the  encroachment  of  the  land  owners 
affected.  Under  the  housing  acts,  however,  slum  areas  could 
be  condemned  and  reconstructed,  and  by  special  acts  streets 
were  sometimes  widened  and  additional  land  taken  by  excess 
condemnation. 

Public  control  over  private  developments  was  slight.  The 
Public  Health  Acts  1  empowered  the  local  authorities  outside 
of  London  to  pass  byelaws  of  more  importance  in  housing 
than  in  planning.  These  byelaws  were  subject  to  confirmation 
by  the  Local  Government  Board — a  national  authority  2 — but 
once  duly  confirmed  could  not  be  modified  or  abrogated  by  it. 
Under  such  byelaws  the  local  authorities  could  regulate  the 
amount  of  open  space  around  houses,  limit  their  height,  estab- 
lish building  lines  in  certain  cases  and  determine  the  width 
of  streets.  It  was  not  until  1907  that,  subject  to  many  limi- 
tations, the  direction  of  these  streets  could  be  fixed  in  this 
way;  nor  could  the  owner  (except  under  the  special  provisions 
of  one  or  two  city  charters)  be  required  to  submit  a  plan  of 
the  proposed  development  of  his  tract  as  a  whole.  In  London 

1  Originally  passed  in  1848,  ch.  63.  The  reference  is  to  the  act  of  1875, 
ch.  55,  sec.  157  (see  also  sec.  155)  as  amended  by  the  Health  Amendment 
Acts  of  1890,  ch.  59,  and  1907,  ch.  53;  see  also  Public  Health  (Build- 
ings in  Streets)  Act,  1888. 

*  These  duties  are  now  performed  by  the  Ministry  of  Health ;  see  9 
and  10  Geo.  V.,  ch.  21. 

498 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE     499 

and  a  number  of  other  cities  planning  was  governed  by  special 
acts  which  were  not  materially  in  advance  of  those  in  force  else- 
where. 

English  Planning  Act  of  1909-1919. — In  1909  England 
passed  her  first  systematic  planning  act.  In  1919  it  was 
amended  in  many  particulars,  and  is  here  summarized  in  its 
amended  form.  Perhaps  the  most  important  change  in  the 
law  of  1909  made  in  1919  is  that,  while  formerly  the  prepara- 
tion and  adoption  under  it  of  plans  by  local  authorities  was 
permissive,  it  is  now  mandatory  on  all  urban  authorities  who 
on  January  I,  1923,  have  a  population  of  20,000  or  over.3 

Purpose  of  Act. — The  English  act  is  so  different  from 
all  the  others  that  before  taking  it  up  in  detail  it  may  be  well 
briefly  to  consider  its  general  purpose.  In  other  planning  acts 
the  unit  is  the  entire  city.  It  is  quite  true  that  under  these 
systems  parts  of  cities  are  regulated  by  plans  made  at  different 
times,  and  that  all  planning  should  be  varied  in  different  locali- 
ties to  suit  local  conditions;  it  is  quite  true  that,  in  Italy  and 
Germany,  where  cities  are  more  solidly  built  than  in  Great 
Britain  or  on  this  side  of  the  Atlantic,  the  plans  are  generally 
"extension"  plans,  for  the  development  of  districts  not  yet 
built  up  and  the  laws  are  framed  with  that  fact  in  view;  but 
invariably,  except  in  England,  there  is,  in  existence  or  in  pros- 
pect,, a  plan  of  the  city  as  a  whole,  of  which  the  sectional  plans 
form  a  part,  and  a  planning  law  applicable  to  it  all,  under  which 
it  can  all  be  regulated.  In  England  the  planning  unit  is  a  se- 
lected section  of  the  city,  and  there  is  no  general  plan  with  any 
legal  force  or  planning  law  applicable  to  the  entire  city.  It  is 
the  special  area  only  which  is  planned,  under  a  scheme  espe- 
cially devised  for  it,  in  effect  an  act  of  Parliament,  which  over- 
rides "any  statutory  enactments,  byelaws,  regulations  or  other 
provisions  under  whatever  authority  made,  which  are  in  oper- 
ation" 4  in  the  city  as  a  whole.  Within  that  area  contemplated 
improvements  are  protected ;  outside  it  there  is  not  and  cannot 
be  any  such  protection.  Within  that  area  land  owners  and 

8  The  French  mandatory  city  planning  law  was  passed  a  few  months 
before  the  English  mandatory  provisions,  referred  to  above,  were  enacted. 
*Act  of  1909,  Part  II,  55-  (2). 


SOD  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  community  are  entitled  to  receive  the  benefits  and  forced  to 
bear  the  burdens  the  scheme  creates ;  outside  it  they  do  not  re- 
ceive these  benefits  and  are  free  from  these  burdens.  For  in- 
stance, in  various  areas  in  the  undeveloped  parts  of  the  territory 
within  the  limits  of  the  city  of  Birmingham,  zoning  rules  are  in 
force;  in  the  other  portions  of  the  suburbs  there  is  not  as  yet, 
and  in  the  built  up  part  of  the  city  there  cannot  be,  any  zone  pro- 
tection ;  and  any  coordinated,  general  zoning  system  for  the  city 
as  a  whole  is  impossible.  It  does  not  follow  that  the  English 
law  is  better  or  worse  than  the  others — there  are  advantages 
as  well  as  disadvantages  in  regulations  specially  devised  for  a 
given  district. 

Area  To  Be  Planned. — The  area  to  be  planned  is  "any 
land  which  is  in  course  of  development  or  appears  likely  to  be 
used  for  building  purposes"  5  even  if  the  time  when  it  will 
probably  be  so  used  is  remote.  "The  expression  'land  likely  to 
be  used  for  building  purposes'  shall  include  any  land  likely  to 
be  used  as,  or  for  the  purpose  of  providing,  open  spaces,  roads, 
streets,  parks,  pleasure  or  recreation  grounds,  or  for  the  pur- 
pose of  executing  any  work  upon  or  under  the  land  incidental 
to  a  town  planning  scheme,  whether  in  the  nature  of  building 
work  or  not."  6  Land  already  built  on,  or  not  likely  to  be  used 
for  building  purposes,  may  also  be  included  if  so  situated  that 
the  general  object  of  the  scheme  would  be  better  secured  there- 
by; and  to  that  end  structures,  as  far  as  expedient,  may  be. 
destroyed  or  altered.7  A  built  up  tract  which  would  not  aid  in 
this  way  is  often  left  as  an  island  in  the  chosen  area.  The 
purpose  of  the  act  is  therefore  the  improvement  of  undeveloped 
building  land,  the  inclusion  of  other  lands  in  a  scheme  being 
merely  incidental  to  that  purpose.  Improvements  in  the  older 
parts  of  cities  must  still  be  made  under  the  common  law,  by 
slum  clearances  under  the  housing  acts  or  by  special  acts  with 
excess  condemnation,  as  was  done  before  the  passage  of  the 
planning  act. 

There  may  be  more  than  one  area  selected  for  planning 

•Sec.  54-0). 
•Sec.  54- (7). 
'Sec.  54  as  amended  in  1919. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE     501 

within  the  limits  of  the  same  local  authority,  each  with  its 
separate  scheme;  or  an  area  may  be  within  the  territory  of 
more  than  one  such  authority. 

Planning  Authorities. — The  authorities  concerned  in  the 
planning  of  a  given  area  are :  ( I )  The  local  government,  urban 
or  rural,  within  the  limits  of  which  the  area  or  any  part  of  it 
is  situated.  This  government  is  called  the  "local  authority." 
To  it  is  given  the  power  (a)  to  prepare  and  adopt  a  scheme,  or 
accept  with  or  without  modifications  a  scheme  prepared  by  land 
owners;  (b)  to  confer  with  other  local  authorities  with  regard 
to  the  preparation  and  adoption  of  a  scheme  and  appoint  joint 
committees  for  the  purpose. 

Every  urban  district  containing  on  the  first  day  of  Janu- 
ary, 1923,  a  population  of  more  than  20,000  shall  prepare  and 
submit  to  the  Local  Government  Board  a  scheme  for  the  plan- 
ning of  all  land  within  its  limits  with  respect  to  which  such  a 
scheme  may  be  made  under  the  planning  law. 

(2)  The  authority  to  execute  and  administer  the  scheme. 
This  authority  is  named  in  the  scheme  and  is  known  as  the 
"responsible  authority."     Where  the  area  is  within  the  limits 
of  more  than  one  local  authority  or  of  a  local  authority  other 
than  the  one  who  prepared  it,  the  responsible  authority  may  be 
one  of  these  authorities,  or  one  of  them  for  certain  purposes 
and  another  for  others,  or  a  joint  body  constituted  for  the  pur- 
pose.    Invariably,  however,  until  recently  the  local  authority 
has  been  the  sole  responsible  authority  for  areas  or  parts  of 
areas  within  its  limits. 

(3)  The  Ministry  of  Health,8  to  whom  is  given  the  power 
(a)  to  approve  schemes  with  or  without  modifications,  without 
which  approval  no  scheme  becomes  effective;  (b)  to  prepare 
regulations,  which  become  a  part  of  every  scheme  except  in  so 
far  as  otherwise  provided  in  a  scheme  approved  by  the  minister; 
(c)  to  act  as  arbitrator  or  judge  in  many  cases  with  regard  to 
the  rights  and  duties  of  the  parties  under  the  scheme;  there 
being  in  some  cases  appeals  to  the  courts,  and  in  a  few  instances 
to  Parliament;  (d)  to  require  a  local  authority  to  prepare  and 

*This  power,  formerly  exercised  by  the  Local  Government  Board,  is 
conferred  upon  the  Ministry  of  Health  by  9  and  10  Geo.  V,  ch,  21. 


502  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

execute  a  planning  scheme  if,  after  a  public  local  hearing,  the 
minister  is  satisfied  that  this  is  necessary. 

Content  of  Scheme. — The  special  scheme,  which  is  de- 
vised for  each  area  planned,  gives  in  detail  the  objects  in  view 
and  the  methods  to  be  used  in  attaining  them.  The  general 
object  to  be  sought  is  stated  in  the  act  9  to  be  "securing  proper 
sanitary  conditions,  amenity,  and  convenience  in  connection 
with  the  laying  out  and  use  of  the  land,  and  of  any  neighboring 
lands."  The  comprehensive  but  somewhat  indefinite  expres- 
sion "general  welfare,"  so  much  employed  in  this  country,  is 
not  used;  but  "sanitary  conditions"  is  in  these  days  a  broad 
phrase,  and  "amenity"  or  the  quality  of  being  agreeable,  which 
includes  aesthetics,  and  "convenience,"  which  embraces  many 
minor  matters  in  the  aggregate  of  great  importance,  add  much 
to  the  scope  of  the  definition. 

To  carry  out  the  general  object  of  the  act,  so  broadly  stated, 
the  Ministry  of  Health  is  granted  the  power  to  frame  a  set  of 
general  provisions,  or  separate  sets  of  general  provisions 
adapted  for  areas  of  any  special  character ;  and  in  a  schedule  10 
certain  specific  matters  with  which  these  provisions  may  deal 
are  stated.  They  include  not  only  public  features  of  the  com- 
munity such  as  streets,  public  open  spaces,  sewers,  water  and 
lighting  systems,  etc.,  and  private  features  such  as  private  open 
spaces,  building  and  zoning  regulations,  etc.,  but  preservation 
of  places  of  historic  interest  and  natural  beauty,  prohibition  of 
billboards,  variation  of  statutes  and  byelaws,  agreements 
with  and  between  land  owners,  trusts  for  public  purposes,  and 
methods  of  planning  administration.  The  National  Govern- 
ment has  not  as  yet  drawn  up  any  general  provisions,11  and  in 
all  probability  will  not  do  so  until  much  more  experience 
under  the  act  has  accumulated.  Pending  such  provisions  the 
Ministry  of  Health  is  authorized  to  accept  as  part  of  each 
scheme  such  special  provisions  as  to  it  seem  proper  or  to  modify 
those  proposed  in  the  scheme.  In  addition  to  these  provisions 

•Sec.  54-(O. 

"The   fourth   under  the  act  of   IQOQ. 

u  Procedural  regulations,  however,  were  issued  under  the  act  of  1909 
on  February  n,  1914  (since  amended);  and  under  the  act  of  1919,  on 
March  30,  1921. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE      5f>3 

there  may  be  inserted  in  the  scheme  regulations  for  "supple- 
menting, excluding,  or  varying  the  general  provisions,  and 
also  for  dealing  with  any  special  circumstances  or  contingencies 
for  which  adequate  provision  is  not  made  by  the  general  pro- 
visions," and  for  varying  statutes,  byelaws,  etc.,  in  that  special 
area.12  Evidently  the  statute  furnishes  little  more  than  a 
frame  work,  and  the  actual  planning  rules  are  to  be  found,  for 
the  most  part,  in  the  classes  of  specific  schemes. 

Building  Regulation  and  Zoning. — In  most,  if  not  all, 
the  schemes  there  will  be  found  provisions  dividing  the  area 
into  districts  in  which  the  amount  of  open  space  in  propor- 
tion to  buildings  and  the  use  of  buildings  are  differently  reg- 
ulated. This  regulation,  however,  is  not  called  zoning,  but 
"the  limitation  of  the  number  of  houses  to  the  acre"  and  "the 
allocation  of  particular  sites  for  particular  sorts  of  buildings." 

In  the  limitation  of  the  number  of  houses  to  the  acre,  a 
"house"  or  "dwelling  house"  is  variously  defined  as  a  building 
designed  for  the  use  of  not  more  than  one  family,13  or  merely 
as  a  building  wholly  14  or  wholly  or  principally  15  for  human 
habitation ;  and  in  one  case  16  it  is  provided  that  any  dwelling 
house,  if  designed  for  more  than  two  and  not  more  than  four 
families,  shall  be  reckoned  as  two  buildings;  and  if  designed 
for  more  than  four  families,  it  shall  be  reckoned  as  three 
buildings.  "Acre"  in  this  connection  sometimes  means  net, 
but  more  usually  gross,  acre. 

The  method  of  limiting  the  number  of  houses  to  the  acre 
varies  somewhat  in  the  different  schemes,  but  the  principle 
underlying  them  all  is  the  same.  The  provision  for  that  pur- 
pose in  the  East  Birmingham  scheme  will  serve  as  a  sufficient 
illustration  of  that  general  principle.  In  that  scheme  three 
zones  were  established  each  with  an  average  of  houses  to  the 
gross  acre  which  in  that  zone  as  a  whole  must  not  be  exceeded, 

"Sec.   55- (2). 

18  The  East  Birmingham,  Otley,  Birmingham  (North  Yardley  and 
Stechford)  and  North  Brumsgrove  (Rubery)  schemes;  and  the  Dun- 
fermline  (Scotland)  scheme,  in  which  there  is  also  provision  for  tene- 
ments. 

"The  Rochdale    (Marland)    scheme. 

15  Chesterfield    (Chester   St.   area)    scheme. 

"The   Ruislip  Northwood  scheme. 


504  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  averages  being  12,  15  and  18;  and  a  maximum  of  twenty 
houses  to  the  acre  was  fixed  which  must  not  be  exceeded  on  any 
acre  within  the  area  covered  by  the  scheme.  When  at  any  time 
the  owner  of  the  land  in  the  area  desires  to  erect  buildings  on 
any  tract  belonging  to  him,  he  is  required  to  submit  plans  of 
the  contemplated  development  of  his  entire  tract ;  and  in  some 
schemes  neighboring  owners  are  required  to  do  likewise  if  this 
information  is  needed  at  that  time.  All  the  land  of  the  owner 
desiring  to  build  is  then  divided  into  units,  and  the  responsible 
authority  sanctions  the  maximum  number  of  dwellings  which 
may  be  located  on  any  such  unit,  or  on  each  acre  or  other  por- 
tion of  it  if  this  seems  desirable;  and  also  sanctions  the  num- 
ber and  defines  the  character  of  purpose  of  other  buildings  to 
be  erected.  The  reason  for  this  division  of  the  land  into  units 
is  both  to  prevent  the  owner  from  erecting  more  houses  than 
he  is  entitled  to  on  the  tract  in  question,  or  on  his  land  as  a 
whole,  and  to  keep  him  from  unduly  congesting  any  particu- 
lar part  of  it,  while  still  leaving  him  as  free  as  possible  in  the 
subsequent  development  of  his  property.  In  some  schemes, 
in  addition  to  the  limitation  of  the  number  of  houses  to  the 
acre,  there  are  limitations  on  the  amount  of  the  lot  that  may  be 
covered  by  certain  buildings,  and  height  limitations. 

Methods  of  use  zoning,  or  "allocation  of  particular  sites 
for  particular  sorts  of  buildings"  also  differ  in  different 
schemes,  partly  because  practice  is  still  in  process  of  evolution, 
partly  because  the  areas  to  be  planned  differ  and  it  is  possible 
to  frame  methods  especially  for  them.  In  the  East  Birmingham 
scheme,  for  instance,  there  are  certain  districts  primarily  for 
residence  and  others  for  manufacturing,  but  shops,  etc.,  in  the 
residential  areas  are  located  by  the  responsible  authority  by 
special  order;  while  in  the  Ruislip  Northwood  scheme,  there 
are  four  classes  of  use  districts,  one  for  dwellings,  one  for 
dwellings  and  shops,  one  for  business  and  one  unrestricted, 
for  manufacturing.  Existing  uses  are  allowed  to  continue ;  but, 
since  the  areas  are  undeveloped,  the  problem  of  the  nonci in- 
forming uses  is  not  a  difficult  one. 

Payment  of  Costs. — The  principal  expense  of  carrying 
out  the  schemes  so  far  approved  is  the  construction  of  the 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE      5<>5 

necessary  streets  with  their  sewers,  water  pipes,  light  fixtures, 
etc.  As  a  rule  the  principal  streets  are  to  be  built  by  the 
responsible  authority,  the  minor  ones  by  the  land  owners,  or 
by  the  responsible  authority  with  the  right  to  recover  the  ex- 
pense without  interest  from  the  land  owner  when  he  builds. 

The  act  provides  17  that  "Where,  by  the  making  of  any 
town  planning  scheme,  any  property  is  increased  in  value,  the 
responsible  authority  .  .  .  shall  be  entitled  to  recover  from 
any  person  whose  property  is  so  increased  in  value  one-half  of 
the  amount  of  that  increase."  This  should  be  a  great  aid  in 
the  payment  of  the  cost  of  planning  and  construction. 

/Esthetics. — One  of  the  general  objects  which  the  plan- 
ning law  seeks  to  accomplish  is  to  promote  the  "amenity"  of 
the  areas  planned.18  The  law,  also,  by  stating  19  that  no  com- 
pensation shall  be  due  on  account  of  the  provisions  in  a  scheme 
prescribing  the  "character"  of  buildings,  impliedly  authorizes 
the  insertion  of  aesthetic  provisions.  In  addition,  the  fourth 
schedule  of  the  act  of  1909  includes  as  one  of  the  matters  to  be 
dealt  with  by  general  provisions,  "The  preservation  of  objects 
of  historical  interest  or  natural  beauty."  Thus  the  planning 
authorities  are  given  considerable  power  of  aesthetic  regula- 
tion. 

Administration. — From  the  account  already  given  it  is 
evident  that,  directly  and  immediately,  the  scheme  establishes 
only  the  most  general  features  of  the  plan,  the  details  being 
fixed  and  subsequently  carried  out  in  accordance  with  adminis- 
trative methods  which  are  also  provided  for  in  the  scheme 
and  in  many  particulars  especially  devised  for  the  area  in  ques- 
tion. Thus  the  districts  where  an  average  of  12,  15  or  18 
dwelling  houses  to  the  acre  is  to  be  maintained,  are  immediately 
established  by  clauses  in  the  scheme  itself;  but  the  land  units, 
fixing  densities  in  detail,  are  established  subsequently  and  by  the 
responsible  authority  from  time  to  time,  the  scheme  merely 
creating  the  machinery  for  establishing  them;  and  residential 
and  industrial  areas  are  immediately  created  by  the  scheme,  but 

"Sec.  58- (3). 
"Sec.  S4-(i). 
"Sec.  S9-(2). 


506  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  sites  of  shops,  etc.,  are  to  be  fixed  subsequently  by  the 
responsible  authority.  This  is  true  of  the  planning  of  many, 
if  not  all,  the  features  included  in  the  act  and  scheme  under  it, 
such  as  streets,  building  lines,  the  expense  of  planning,  etc.  In 
many  cases  there  is  an  appeal  from  the  action  of  the  responsible 
authority  to  the  Ministry  of  Health  or  the  courts,  or,  in  one 
or  two  cases,  to  Parliament.20 

"*  In  any  careful  study  of  the  English  Planning  Act,  an  examination 
of  the  various  schemes  in  existence  is  essential.  The  American  reader 
will  find  reprints  of  several  such  schemes,  in  some  cases  annotated,  in 
Town  Planning  by  George  Cadbury,  Jr.  (Longmans,  Green  &  Co.,  London 
and  New  York,  1915)  and  The  Case  for  Town  Planning  by  Henry  B. 
Aldridge  (published  by  the  National  Housing  and  Town  Planning  Coun- 
cil, 1915)  ;  others  are  referred  to  above,  and  may  be  obtained  by  the 
student  desiring  them.  For  the  use  of  the  reader  who  does  not  have 
the  time  or  opportunity  for  consulting  the  schemes  themselves,  a  sum- 
mary of  the  East  Birmingham  scheme,  as  amended  May  30,  1918,  by  the 
East  Birmingham  Amendment  Scheme,  is  given. 

SUMMARY  OF  EAST  BIRMINGHAM  SCHEME 

Responsible  Authority;  Area. — The  responsible  authority  is  the  Corpora- 
tion of  the  City  of  Birmingham.  The  area  selected  for  planning  is  shown 
on  maps  annexed  to  the  scheme,  and,  with  the  areas  in  two  other  schemes, 
includes  about  half  of  the  undeveloped  suburbs  within  the  city  limits. 

Streets;  Building  Lines. — Certain  specified  new  streets,  21  in  number 
(being  the  main  streets)  shall  be  constructed,  or  widened,  by  the  Corpo- 
ration. They  shall  be  begun  at  such  times  as  the  Corporation  deems  best, 
subject  to  appeal  by  anyone  deeming  himself  aggrieved  by  failure  to  con- 
struct. Any  such  street  shall  in  any  event  be  completed  and  sewers,  water 
connections,  etc.,  constructed,  when  not  less  than  75  per  cent,  of  the  total 
frontage  on  it  has  been  built  up  or  appropriated  as  yards,  etc.,  for  build- 
ings. 

Subject  to  the  right  of  appeal,  all  streets  made  by  the  land  owners 
shall  be  constructed  in  accordance  with  the  scheme  and  with  the  require- 
ments of  the  Corporation.  Building  lines  shall  be  fixed  as  specified  in 
the  scheme;  and  on  existing  streets  where  none  are  indicated  the  Corpora- 
tion may  establish  them  when  any  plan  for  building  on  it  is  submitted 
to  it  for  approval ;  provided  that  such  line  shall  not  be  less  than  36  feet. 
or,  except  by  agreement,  more  than  41  feet,  from  the  center  of  the  street. 
Where  the  building  lines  shown  on  plans  submitted  vary  from  those  of 
the  scheme  they  shall  be  subject  to  the  approval  of  the  Corporation. 

The  Corporation,  whenever  the  plan  of  a  new  street  is  submitted  to 
it  for  approval,  may  require  the  owners  of  any  lands  within  the  area  the 
development  of  which  will  be  affected  by  the  construction  of  such  street,. 
to  submit  plans  showing  a  scheme  for  their  development. 

Payment  of  Cost  of  Streets. — Certain  streets  shall  be  built  and  paid 
for  by  the  Corporation  without  recourse  to  the  land  owners ;  certain  others 
shall  be  hniit  and  paid  for  by  the  Corporation  in  the  first  instance,  but 
every  owner  benefited  shall  repay  the  Corporation  an  amount  equal  to 
his  benefit  from  the  street  (but  not  to  exceed  £3  IDS  per  yard  of  his 
frontage  on  the  street).  When  his  land  is  taxed  as  anything  but  agri- 
cultural land,  the  owner  has  certain  rights  of  appeal  if  he  considers  his 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE      507 

Effect  of  Scheme. — Differently  expressed  to  fit  the  peculi- 
arities of  the  act,  the  provisions  with  regard  to  the  effect  of  the 
adoption  and  confirmation  of  the  scheme  under  the  English 

tax  unjust.  The  rest  of  the  streets  shall.be  built  and  paid  for,  in  the 
first  instance,  by  the  land  owners  without  recourse  of  any  sort. 

Maintenance  of  Streets,  etc. — Any  street  built  otherwise  than  by  the 
Corporation,  when  finished  to  its  satisfaction,  shall  be  taken  over  and 
maintained  by  the  Corporation  as  Soon  as  75  per  cent,  of  its  frontage  has 
been  built  up  or  appropriated  as  yards,  etc.,  and  sewers,  water  connec- 
tions, etc.,  laid ;  but  not  before  that  time  except  by  agreement. 

The  Local  Government  Board  may  sanction  any  modification  in  detail 
agreed  upon  at  any  time  between  the  Corporation  and  the  land  owners 
interested  as  to  the  position,  construction  or  widening  of  any  of  the  streets 
to  be  made  by  the  Corporation ;  public  notice  having  first  been  given  and 
an  opportunity  to  object  afforded  any  person  so  desiring.  Certain  high- 
ways are  to  be  stopped  up  at  any  time  after  certain  new  construction  takes 
place. 

Trees,  Grass,  Margins,  etc. — In  certahj  streets  the  Corporation  is  given 
power  to  plant  and  maintain  grass  margins,  shrubs,  trees,  etc. ;  in  others 
the  landowners  are  required  to  plant  them  and  maintain  them  until  the 
street  is  taken  over  by  the  Corporation. 

Dwelling  Houses. — "Dwelling  houses"  shall  mean  houses  designed  for 
not  more  than  one  family,  with  such  outbuildings  as  are  reasonably 
required  in  connection  with  them.  In  reckoning  the  number  of  dwelling 
houses  to  be  erected  to  an  acre,  all  roads  and  private  open  spaces  con- 
structed and  set  apart  or  to  be  constructed  or  set  apart  by  the  land 
owner,  and  one-half  of  the  width  of  highways  repairable  by  the  in- 
habitants at  large  upon  which  such  lands  abut,  shall  be  included  in  the 
measurement  of  the  acre;  but  no  account  shall  be  taken  of  public  open 
spaces  acquired  otherwise  than  by  gift  subsequent  to  the  making  of  this 
scheme,  or  leased  by  the  Corporation,  or  of  the  sites  of  shops  and  other 
buildings  hereinafter  mentioned. 

The  number  of  dwelling  houses  on  any  one  acre  shall  not  exceed 
twenty.  When  a  plan  is  submitted  for  approval  of  the  Corporation  in 
regard  to  the  erection  of  any  building,  if  the  owner  does  not  own  any 
other  land  which  is  not  included  in  a  land  unit,  the  land  included  in  that 
plan  shall  constitute  a  land  unit;  otherwise  the  owner  shall  submit  a 
plan  of  all  his  land  not  included  in  a  unit  and  the  Corporation  shall  deter- 
mine the  unit.  As  a  rule,  units  do  not  exceed  from  five  to  seven  acres. 

The  owner,  before  commencing  to  build  on  any  unit,  shall  deposit 
with  the  Corporation  a  statement  of  the  number  and  description  of  the 
dwelling  houses  or  other  buildings  which  he  desires  to  erect  on  any  land 
unit,  and  the  Corporation  shall  by  order  sanction  the  maximum  number 
of  dwelling  houses  which  may  be  erected  on  any  land  unit,  or  on  each 
acre  or  other  portion  of  the  land  unit,  and  sanction  the  number  and 
define  the  character  or  purposes  of  the  other  buildings  to  be  erected 
thereon;  but  in  no  case  shall  the  Corporation  approve  the  erection  of  a 
greater  or  require  the  erection  of  a  less  number  of  dwelling  houses  on 
the  land  unit  than  will  give  an  average  over  the  land  unit  of  12,  15  or  18 
to  the  acre  in  units  forming  parts  of  the  areas  colored  light  gray,  medium, 
and  dark  gray,  respectively  on  map  B,  annexed  to  the  scheme.  Any  such 
order  is  subject  to  appeal,  binds  subsequent  owners  and,  in  the  absence 
of  agreement  between  them,  the  Corporation  may  determine,  subject  to 
appeal,  the  respective  rights  of  seller  and  purchaser.  All  orders  may, 


5<>8  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

law  are  in  result  practically  the  same  as  those  in  other  systems 
with  regard  to  the  effect  of  the  establishment  of  the  plan.  Thus 
under  the  English  law  the  scheme  may  become  effective  from 

on  application  of  the  owner,  be  amended  or  revoked,  provided  that  the 
averages  for  the  land  unit  just  mentioned  are  not  exceeded.  By  the  con- 
sent of  the  Corporation  there  may  be  erected  in  the  gray  areas  such  shops 
or  buildings  other  than  dwelling  houses  as  the  Corporation  may  think  fit. 

Appeals. — Any  person  aggrieved  by  the  determination  of  a  land  unit 
by  the  Corporation  or  by  any  proposal  to  give  or  withholding  of  consent 
to  the  erection  of  shops  or  buildings  other  than  dwelling  houses  (but  not 
from  consent  to  erection  of  shops,  etc,),  may  appeal  to  the  Local  Govern- 
ment Board. 

Groups,  Breaks  between  Houses,  etc. — Not  more  than  eight  dwelling 
houses  shall  in  any  one  place  be  built  under  one  continuous  roof  or  with- 
out a  break  in  building  from  the  ground  upward.  No  part  of  any  con- 
tinuous block  of  more  houses  than  four  shall  be  built  nearer  to  the  owners' 
boundary  than  three  feet.  No  break  in  buildings  from  the  ground  upward 
shall  be  less  in  width  than  six  feet ;  provided  that  the  Corporation  may 
allow  a  break  of  not  less  than  four  feet  where  the  break  is  between 
detached  houses,  or  a  detached  house  or  continuous  block  of  houses  and 
another  such  block,  neither  block  to  contain  more  than  five  dwelling 
houses.  No  structure  shall  be  so  built  as  to  impede  ventilation  or  conduce 
to  make  other  buildings  unfit  for  human  habitation  or  dangerous  or  in- 
jurious to  health,  or  so  as  to  prevent  the  remedying  of  any  nuisance 
injurious  to  health,  etc. 

Demolition  of  Works. — So  far  as  necessary  for  carrying  this  scheme 
into  effect  the  Corporation  may  demolish  or  alter  any  building  existing 
in  the  area  at  the  date  of  the  approval  of  this  scheme. 

Lands  Set  Apart  for  Purposes  of  Scheme. — Certain  specified  lands  are 
set  apart  for  playing  fields,  public  walks,  pleasure  grounds,  streets,  etc., 
and  the  Corporation  is  authorized  to  acquire  them. 

Factories. — Except  on  lands  colored  pink  on  map  B,  no  factory  or 
workshop  shall  be  erected  in  the  area  except  with  the  consent  of  the 
Corporation  as  aforesaid;  and  except  on  those  lands  no  manufacturing 
business  shall  be  carried  on  therein  without  such  consent;  but  bricks  may 
be  made  on  land  already  used  for  such  purpose  and  any  building  now 
used  as  a  factory  or  workshop  may  continue  to  be  so  used.  Any  person 
aggrieved  by  the  withholding  of  any  consent  may  appeal  to  the  Local 
Government  Board. 

Outdoor  Advertising. — No  outdoor  advertising  which  interferes  with 
the  amenity  of  the  area  is  allowed ;  but  the  exhibition  of  traders'  names 
on  shops  or  factories  and  notices  on  chapels,  churches  and  mission  rooms 
is  permitted. 

Nuisances. — All  private  gardens,  etc.,  shall  be  so  kept  as  not  to  be  a 
nuisance  or  annoyance  to  neighbors  or  to  persons  using  the  highways ;  and 
the  Corporation  may  abate  such  nuisance  at  the  expense  of  the  owner. 

Adjustment  of  Boundaries,  etc. — The  Corporation,  for  the  purpose 
of  securing  the  proper  development  of  any  lands  within  the  area  in  con- 
nection with  any  new  streets  to  be  constructed  by  it  or  with  any  plans 
for  streets  to  be  constructed  by  land  owners  submitted  to  it  for  approval, 
may  require  an  adjustment  of  boundaries;  and  if  this*  is  not  done  by 
agreement  between  the  Corporation  and  the  land  owners,  or  between  the 
land  owners,  may  apply  to  the  Local  Government  Hoard  for  the  appoint- 
ment of  an  arbitrator.  The  Corporation  may  agree  to  pay,  or  by  arbitration 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE      509 

the  date  of  the  adoption  of  the  resolution  of  the  local  authority 
to  prepare  a  scheme,  and  compensation  for  all  improvements 
begun  after  that  date  refused  unless  they  are  specially  author- 
ized ;  the  owner  of  land  affected  is  not  paid  for  the  restrictions 
due  to  the  establishment  of  the  scheme  but  only  for  property 
rights  taken,  payable  when  they  are  taken;  and  there  is  no 
liability  for  the  usual  height,  area  and  use  restrictions  or  for 
the  few  aesthetic  regulations  which  experience  has  shown  to 
be  essential. 

Regional  Planning. — The  law  provides  for  the  appoint- 

be  obligated  to  pay,  moneys  in  this  connection ;  but  land  owners  shall  not 
be  obliged  to  pay  as  a  condition  of  such  arbitration,  except  with  their  con- 
sent. For  the  purpose  of  such  adjustments  the  Corporation  may  purchase 
interests  in  land,  and  sell  or  lease  the  same  or  any  part  thereof  subject 
to  such  conditions  as  it  sees  fit ;  or  may  appropriate  such  interests  to 
any  public  purpose  approved  by  the  Local  Government  Board;  and  until 
such  disposition  may  lease  the  same. 

Claims,  .Entry,  etc. — Claims  under  sec.  58  of  the  act  of  1909  for 
compensation  or  in  respect  of  any  increase  in  value  of  property  shall  be 
made  within  twelve  months  from  the  date  of  approval  of  this  scheme 
by  the  Board.  The  Corporation  may  enter  upon  any  property  within  the 
area  for  purposes  of  inspection  necessitated  by  provisions  of  the  scheme. 
Breach  of  conditions  of  the  scheme  is  a  criminal  offense.  Works  contra- 
vening the  scheme  may  be  removed ;  on  failure  to  do  work  as  required 
by  the  scheme  the  Corporation  may  do  it  at  the  expense  of  the  person 
in  default,  and  agreements  not  contrary  to  this  scheme  may,  subject  to 
the  approval  of  the  Board,  be  made  by  the  Corporation  to  carry  it  out. 

Suspension  and  Application  of  Acts,  etc. — Certain  statutes,  byelaws, 
regulations,  etc.,  are  suspended  in  the  scheme,  or  are  specially  varied 
or  applied  within  it  to  suit  its  special  circumstances.  Land  acquired  for 
one  purpose  and  not  needed  for  it  may  be  applied  to  other  purposes. 

Any  general  provisions  hereafter  made  under  sec.  55  of  the  act  of 
1909  are  excluded  from  taking  effect  as  part  of  the  scheme. 

Obligations  under  this  scheme  may  be  recovered  by  the  Corporation 
and  may  be  made  payable  in  installments. 

Appeals. — Appeals  are  provided  for  by  persons  aggrieved  by  delay 
of  the  Corporation  in  commencing  or  completely  constructing  new  streets, 
by  requirements  by  it  as  to  manner  of  street  construction  or  by  delay 
in  approving  of  plans  for  the  same  or  for  building  lines. 

Time  Scheme  Becomes  Effective. — The  scheme  shall  go  into  effect  on 
the  day  of  its  approval  by  the  Board,  and  continue  in  operation  until  varied 
by  any  subsequent  scheme. 

Approved  by  the  Local  Government  Board  August  13,  1913. 

(Signed)     JOHN   BURNS,  President. 

Certificate  that  objection  to  the  scheme  was  made  by  certain  interested 
persons,  that  the  draft  was  laid  before  each  house  of  Parliament,  and 
that  no  action  was  taken  by  either  house. 

Size,  etc.,  of  Rooms  in  Dwellings. — In  the  Leeds  (Buckingham  House) 
and  Dunfermline  schemes  there  are  provisions  with  regard  to  the  mini- 
mum number,  size  and  height  of  rooms  in  dwelling  houses,  the  height  of 
windows  in  such  rooms,  etc. 


5io  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ment  of  a  joint  authority  for  the  planning  of  areas  within  the 
limits  of  more  than  one  local  authority,  but  it  is  only  recently 
that  any  such  joint  authority  has  been  appointed.21  The 
amendment  of  1919  leaves  the  local  authorities  somewhat  freer 
to  create  such  an  authority  than  they  were  under  the  law  as 
originally  passed  in  1909.  The  power  of  the  Ministry  of 
Health  to  approve  schemes  with  or  without  modifications  gives 
that  body  full  power  to  require  regional  plans  or  regional  pro- 
visions in  local  plans  whenever  it  considers  them  necessary  and 
to  insert  in  schemes  any  provisions  for  their  execution. 

Planning  in  British  Empire  Outside  of  England. — The 
English  planning  act  of  1909  is  in  force  in  Wales,22  and 
with  some  modifications,  in  Scotland  ;23  but  not  in  Ireland.24 
The  act  of  1919  extends  to  Wales  22  but  not  to  Scotland  or  Ire- 
land.25 A  special  act  has  been  passed,  applicable  to  Scotland.28 
Planning  laws  similar  to  the  English  law  have  been  passed  or 
have  been  proposed  and  seem  likely  soon  to  be  enacted  in  many 
other  parts  of  the  British  Empire,  including  Canada.-7 

n  With  regard  to  the  need,  in  many  cases,  see  Ministry  of  Health, 
South  Wales  Regional  Survey  Report,  London,  His  Majesty's  Stationery 
Office,  1921,  p.  66. 

"Acts  of  9  Edw.  VII,  ch.  44  (1909)  and  9  and  10  Geo.  V.,  ch.  35 
(1919). 

"Act  of  1909,  sec.  67. 

**Act  of  1009,  sec.  76- (2). 

"Act  of  1919,  sec.  51. 

"Housing,  Town  Planning,  etc.  (Scotland)  Act,  1919,  being  9  and  10 
Geo.  V,  ch.  60.  See  in  this  connection  Law  of  Housing  and  Town  Plan- 
ning in  Scotland  by  M.  Cooper  and  W.  E.  Whyte,  Wm.  Hodge  &  Co., 
Ltd.,  Edinburgh,  1920. 

"  The  following  Canadian  laws  are  modeled  on  the  English  act : 
ALBERTA,  1913,  ch.  18  (March  25):  MANITOBA,  1916,  ch.  114  (March  10) ; 
NEW  BRUNSWICK,  1912  (2  Geo.  V),  ch.  19  (April  20)  ;  NOVA  SCOTIA,  1912 
(2  Geo.  V),  ch.  6  (  May  3),  amended,  1915  (5  Geo.  V)  ch.  3  (April  23)  ; 
PRINCE  EDWARD  ISLAND,  1918,  ch.  7  (April  26) ;  SASKATCHEWAN,  1917, 
ch.  70  (Dec.  15),  amended,  1918-19,  ch.  40,  1919-20,  ch.  29,  now  Rev.  Stat. 
1920,  ch.  104. 

Not  modeled  on  the  English  act  are  the  planning  statutes  of  ONTARIO, 
1917  (7  Geo.  V),  ch.  44,  amended  1918  (8  Geo.  V),  ch.  38,  1919  (9  Geo. 
V),  ch.  53,  1920  (io-ii  Geo.  V),  ch.  60;  see  also  the  Municipal  Act,  espe- 
cially the  amendment  of  1921  (n  Geo.  V),  ch.  63,  sec.  10. 

Other  acts  more  or  less  modeled  on  the  English  act,  in  various  parts 
of  the  British  Empire,  are  BOMBAY,  1915,  No.  I ;  MADRAS,  act  of  August 
28,  1920;  SOUTH  AUSTRALIA,  1920  (n  Geo.  V),  No.  i  is--  ( IVr.  o) 

Apparently  not  modeled  upon  the  English  act  is  the  planning  ordi- 
nance for  Jerusalem,  the  text  of  which  is  given  in  the  English  magazine, 
"Garden  Cities  and  Town  Planning,"  for  August,  1921,  p.  191. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE      S» 

Planning  in  Canada. — In  Canada,  the  planning  jurisdic- 
tion of  the  central  government,  while  potentially  it  may  be  con- 
siderable, has  not  in  fact  been  exercised  except  in  an  advisory 
capacity.  The  Dominion  has,  through  its  Commission  of 
Conservation,  encouraged  and  aided  planning,28  but  the  actual 
work,  and  the  legislation  authorizing  it,  have  been  left  to  the 
individual  provinces.  Six  of  these  provinces  have  passed 
planning  laws  based' on  the  English  planning  law.28* 

Canadian  Statutes  Modeled  on  English  Law. — The 
earlier  Canadian  planning  statutes  modeled  on  the  English  law 
were  similar  to  the  original  English  statute  as  it  was  in  1909; 
the  local  Canadian  authorities  being  compelled  to  plan  only  on 
order  of  the  provincial  authorities  in  individual  cases  after 
hearing.  The  later  Canadian  statutes  have  more  and  more 
anticipated  the  reforms  contained  in  the  amendment  to  the 
English  law,  passed  in  1919,  or  suggested  in  connection  with 
it.  Under  these  later  statutes  the  local  authorities  are  often 
compelled  to  adopt  either  a  scheme  or  planning  bylaws,  de- 
scribed as  a  "partial  scheme  for  the  whole  of  its  area,"  within 
three  years;  the  responsible  authority  is  entitled  to  one-half  the 
betterment  due  not  only  to  the  adoption  but  to  the  execution 
of  the  scheme;  the  condemnation  procedure  is  amended  and 
the  authorities  are  allowed  to  take  land  within  two  hundred 
feet  of  new  streets  and.  other  improvements.  More  freedom  is 
also  allowed  in  development  subsequent  to  the  beginning  of  the 
planning.  This  progress  was  greatly  aided  by  draft  legislation 
prepared  and  issued  by  the  Dominion  Commission  of  Conser- 
vation,29* and  by  its  assistance  and  advice  generally.  In  some 
ways  the  Canadian  legislation  is  a  departure  from  British 
precedent.  The  tendency  is  to  make  the  local  authority  the 
responsible  authority,  but  to  authorize  and  encourage  it  to 
appoint  a  planning  commission  to  exercise  most,  if  not  all,  the 
planning  powers  of  the  local  authority  under  the  act ;  the  pay- 

38  The  town  planning  division  of  the  Commission  has  been  transferred 
to  the  National  Parks  Branch  of  the  Department  of  the  Interior;  and  its 
attention  will  be  chiefly  devoted  to  purely  Federal  matters. 

2811  See  note  27  on  page  510. 

"The  "First  Draft"  of  a  Canadian  Town  Planning-  Act,  was  issued  in 
1914;  the  "Revised  Edition,"  in  1915. 


512 

ment  of  the  expenses  of  the  preparation  and  adoption  of  the 
scheme  or  bylaws  being  compulsory  on  the  local  authority,  but 
no  other  levy  or  borrowing  of  money  being  permitted  for  plan- 
ning purposes  without  its  consent.  Several  of  the  laws  mention 
tramways  as  one  of  the  matters  to  be  dealt  with  in  schemes  or 
planning  bylaws ;  and  in  one  or  two  cases  the  zoning  of  central 
parts  of  localities  is  referred  to  and  provided  for.  In  Sas- 
katchewan, where  all  subdivisions  must  be  approved  by  the 
local  authorities  or  by  the  central  authorities,  five  per  cent  of 
the  land  subdivided,  in  addition  to  streets,  etc.,  must  be  dedi- 
cated to  public  use,  and,  as  in  other  provinces,  the  urban  authori- 
ties are  given  a  certain  control  over  development  in  land  out- 
side, but  within  a  certain  distance  of,  their  limits.  As  an  indi- 
cation of  the  increasing  scope  of  city  planning,  it  is  interesting 
to  note  that  the  Saskatchewan  act  is  entitled  "The  Town  Plan- 
ning and  Rural  Development  Act"  and  that  in  Schedule  A  of 
that  act,  among  the  matters  to  be  dealt  with,  is  included  "clas- 
sifying land  used,  intended  to  be  used  or  suitable  to  be  used 
for  different  kinds  of  agriculture,  for  horticulture  ...  or  for 
timber  or  other  resources."  30 

Canadian  Planning  Statutes  Not  Modeled  on  the  Eng- 
lish Law. — All  the  planning  law  of  Canada  is  not  based  on 
the  English  act  of  1909.  Prior  to  that  date,  in  the  province  of 
Ontario,  communities  were  authorized  to  pass  use  zoning  regu- 
lations, and  availed  themselves  of  that  privilege;  and  in  the 
Province  of  Quebec,  cities  and  towns  were  empowered  to  make 
community  plans  binding  upon  the  authorities  and  the  owners 
of  the  land  planned;  and  in  Nova  Scotia,  Halifax  adopted  its 

**In  the  Town  Planning  scheme  for  St.  John,  New  Brunswick,  Canada 
(1918),  the  area  is  partly  within  the  limits  «f  the  city,  partly  within  those 
of  the  county  of  St.  John ;  the  local  authority  is  the  City  Council  of  the 
city  for  that  portion  of  the  area  within  the  city  and  the  Municipal  Council 
of  the  city  and  county  for  that  portion  outside  the  citv  limits;  and  the 
responsible  authority  is  a  planning  commission  created  by  the  scheme  fot 
the  purpose,  consisting  of  two  members  nominated  by  the  City  Council, 
one  nominated  bv  the  Council  of  the  citv  and  county,  and  the  Mayor. 
Commissioner  of  Water  and  Sewerage  and  Commissioner  of  Public  Works 
of  the  city,  and  the  Warden  of  the  city  and  county.  Without  their  writ- 
ten consent,  the  cost  of  new  streets,  sewers,  etc.,  shall  in  no  case  be  re- 
covered (without  interest)  from  the  land  owner  until  the  land  is  sub- 
divided or  used  for  other  than  agricultural  purposes. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE      513 

charter,  the  planning  sections  of  which  have  so  often  been 
quoted. 

More  developed  than  those  of  any  other  province  along 
individual  lines  are  the  planning  laws  of  Ontario,  the  most  im- 
portant of  which  are  the  Planning  and  Development  Act  31  and 
certain  sections  of  the  Municipal  Act.32  Under  the  Planning 
and  Development  Act  municipalities  may,  subject  to  the  ap- 
proval of  the  Ontario  Railway  and  Municipal  Board,  create 
urban  zones  consisting  of  the  land  outside  of,  and  extending 
beyond,  their  limits,  in  the  case  of — 

A  city,  to  a  distance  of  five  miles,  but  exclusive  of  any  part 
of  another  city; 

A  town,  to  a  distance  of  three  miles,  but  exclusive  of  any 
part  of  a  city  or  another  town; 

A  village,  to  a  distance  of  three  miles,  but  exclusive  of  any 
part  of  a  city  or  town,  or  another  village. 

Two  or  more  municipalities  may  create  a  common  urban 
zone ;  the  area  of  any  urban  zone  may  be  made  larger  or  smaller 
than  above  provided. 

Within  its  own  limits  and  the  urban  zone  appurtenant  to 
it,  the  municipality  may,  subject  to  the  approval  of  the  Board, 
make  a  city  plan,  which  is  in  effect  a  plan  of  streets  and  parks; 
and  may  also  approve  or  disapprove  of  subdivisions.  In  the 
case  of  land  so  related  to  other  lands  in  the  vicinity,  whether 
owned  by  the  same  or  by  different  owners,  that  it  is  expedient 
that  all  such  lands  should  be  treated  as  one  entire  parcel  for 
purposes  of  subdivision,  provision  is  made  for  a  common  plan. 
The  Municipal  Act  gives  municipalities  the  power,  subject  to 
the  approval  of  the  Board,  to  enact  height,  area  and  use  zoning 
regulations. 

The  French  Planning  Law  of  1919. — It  is  a  remarkable 
fact  that  France,  whose  people  above  all  others  love  order  and 
method,  was  for  many  years  the  one  great  nation  of  Europe 
without  a  city  planning  law.33  Since  1909  there  has  been  a 

n  1917,  ch.  44,  amended  by  1918,  ch.  38,  1919,  ch.  53,  1920,  ch.  60. 
w  Amended,    1921. 

*  For  the  French  method,  hitherto  the  only  one,  of  laying  out  high- 
ways and  establishing  building  lines,  see  p.  66  of  this  work. 


SM  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

constant  effort  on  the  part  of  French  "urbanistes"  to  obtain 
such  a  statute,  and  many  measures  to  that  end  have  been  intro- 
duced in  the  French  Chambers,  only  to  fail  of  passage.  It  was 
not  until  the  war  aroused  the  French  nation  to  a  realization  of 
the  evils  which  bad  sanitation  in  housing  and  city  and  village 
construction  was  causing  throughout  France,  and  the  need  of 
the  immediate  reconstruction  of  the  devastated  regions  brought 
them  face  to  face  with  the  fact  that  only  by  means  of  a  planning 
law  could  they  be  rebuilt  properly,  that  a  planning  law  appli- 
cable to  all  France  was  enacted.34 

The  new  French  planning  law,  like  the  Italian  law  of  1865, 
is  a  development  and  extension  of  the  law  for  the  expropria- 

*  The  planning  law,  a  translation  of  which  will  be  found  on  p.  529  of 
this  work,  was  passed  March  14,  1919  (See  Bull,  des  his  1919,  Bull.  245, 
No.  13850,  p.  558).  It  is  perhaps  the  most  important  of  a  number  of 
notable  laws  passed  at  about  this  time  to  aid  in  reconstruction ;  such  as : 
(i)  The  law  of  November  27,  1918,  Bull.  238,  No.  13350,  amended  March 
I  1919,  Bull.  245,  No.  13810,  for  the  resubdivision  of  land  in  the  devas- 
tated regions,  rendered  necessary  by  the  obliteration  of  land  marks  by 
the  war,  and  most  useful  in  replanning  along  new  lines.  To  supplement 
this  law,  the  law  of  July  29,  1921,  was  passed,  providing  for  excess  con- 
demnation, and  making  additional  provisions  for  replanning  in  localities 
totally  or  partially  destroyed  by  war.  (2)  The  new  excess  and  zone  con- 
demnation laws,  with  relation  to  which  see  p.  79  of  this  work.  (3)  The 
model  sanitary  ordinances,  issued  by  the  Minister  of  the  Interior,  known 
as  "A"  and  "B" ;  whose  importance  is  greatly  increased  by  the  fact  that 
all  construction  paid  for  by  the  government  in  settleme.it  of  claims  for 
damage  caused  by  the  war  in  the  devastated  regions  must  conform  to 
these  standards,  much  higher  than  any  previously  set  in  France,  and  that 
the  government  pays  the  increased  cost  thereby  incurred.  (4)  The  law  of 
April  17,  1919,  Bull.  248,  No.  14081,  for  the  repayment  of  the  damages 
caused  by  the  events  of  the  war.  At  its  basis  is  a  principle  new  in  juris- 
prudence. Heretofore,  in  all  countries  and  all  times,  the  state  at  war  has 
refused  to  hold  itself  liable  for  any  damage  caused  by  the  enemy,  and 
has  by  no  means  been  willing  to  take  responsibility  for  all  the  acts  of 
its  own  citizens  performed  at  its  direction  and  command.  Often,  it  is 
true,  governments  have  made  payments  to  war  sufferers,  but  always  par- 
tially and  more  or  less  capriciously  as  a  charity  rather  than  as  the  ful- 
filment of  a  legal  duty.  In  the  present  law,  however  (art.  i),  "The  Re- 
public proclaims  the  equality  and  solidarity  of  all  Frenchmen  with  regard 
to  the  burdens  of  the  war"  and  (art.  2)  assumes  liability  for  all  the  "cer- 
tain, material  and  direct  damages"  caused  to  them  and  to  friendly  aliens 
by  it.  The  working  out  of  this  new  principle  in  conformity  with  the  ex- 
isting principles  of  law,  is  full  of  interest  to  the  student  of  jurisprudence. 
The  law  does  not,  of  course,  relieve  Germany  and  its  allies  from  any 
liability  incurred  by  them,  although  it  may  make  the  French  Government, 
which  as  between  itself  and  its  inhabitants  has  assumed  the  burden,  the 
party  to  be  repaid.  There  is  a  similar  law  in  Belgium,  passed  May  10, 
1919,  and  amended  May  15,  and  June  I,  1919,  Pasinomie,  1919,  pp.  202, 
215  and  230. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE      515 

tion  of  land.  Under  it  the  following  communities  are  required 
within  three  years  of  the  promulgation  of  the  present  law  to 
have  planning  schemes  formulated  and  in  force : 

Every  city  of  10,000  inhabitants  or  over; 

All  the  communes  of  the  department  of  the  Seine; 

Cities  of  more  than  5,000  and  less  than  10,000  inhabitants 
whose  population  has  increased  more  than  ten  per  cent  in  the 
interval  between  two  consecutive  quinquennial  censuses; 

Seaside  and  other  pleasure  and  health  resorts  whose  popu- 
lation, of  whatever  size,  increases  fifty  per  cent  or  more  at  cer- 
tain seasons  of  the  year ; 

Settlements,  of  whatever  size,  of  a  picturesque,  artistic  or 
historic  character,  listed  as  such  by  the  departmental  commis- 
sion on  natural  sites  and  monuments ; 

Land  or  building  developments  by  associations,  corpora- 
tions or  individuals. 

This  scheme  shall  include: 

1.  A  plan  fixing  the  direction,  width  and  character  of 
highways  to  be  laid  out  or  modified,  and  the  location,  extent 
and  plan  of  squares,  public  gardens,  amusement  grounds,  parks 
and  the  various  open  spaces;  and  indicating  the  reserve  lands, 
whether  wooded  or  otherwise,  and  the  sites  of  future  public 
buildings,  utilities  and  other  services. 

2.  A  program   of   the  hygienic,   archaeological   and  aes- 
thetic servitudes  35  to  be  created,  as  well  as  other  conditions  to 
which  the  scheme  is  to  be  subject,  especially  the  open  spaces  to 
be  preserved,  the  height  of  structures,  the  provisions  for  drink- 
ing water,  sewers,  the  disposition  of  wastes,  and,  if  necessary, 
the  sanitation  of  the  soil. 

3.  The  draft  of  an  order  36  of  the  mayor,  made  after  con- 
sultation with  the  municipal  council,  fixing  the  application  of 
the  above  measures  to  the  plan  and  program. 

When  any  settlement,  of  whatever  size,  has  been  totally 
or  partially  destroyed  by  war,  fire,  earthquake,  or  any  other 
catastrophe,  the  municipality  shall,  within  three  months  of  the 

86  Known  as   easements  in  the  common  law  of  the   English-speaking 

les. 

"Projet  d'arrete." 


5i6  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

date  of  that  event,  draw  up  a  general  plan  of  building  and 
street  lines  and  grades  of  the  part  to  be  reconstructed,  accom- 
panied by  an  outline  of  a  planning  scheme.  Until  the  plan  of 
alignment  and  grades  has  been  approved,  nothing  but  tem- 
porary shelters  shall  be  erected  without  the  authority  of  the 
Prefect  of  the  department  given  after  consultation  with  the 
departmental  planning  commission  provided  for  below. 

The  expenses  of  the  required  schemes  and  plans  in  the  case 
of  communities  destroyed  by  catastrophe  and  those  listed  as 
picturesque,  artistic  or  historic,  shall  be  borne  by  the  state ;  in 
other  cases  subventions  may  be  granted  in  accordance  with  reg- 
ulations to  be  drawn  up  by  the  state. 

In  each  department  there  shall  be  created,  for  the  gui- 
dance of  the  communes  in  their  planning,  a  departmental  plan- 
ning commission  composed  of  the  local  bodies  in  charge  of 
hygiene,  natural  sites  and  monuments,  and  civic  buildings,  and 
four  mayors  appointed  by  the  state.  This  commission  shall, 
of  its  own  motion,  or  on  their  demand,  hear  the  delegates  of 
the  departmental  societies  of  architecture,  art,  archaeology,  his- 
tory, agriculture,  commerce,  industry  and  sport,  the  mayors  of 
the  cities  or  communes  interested,  and  the  representative  of  the 
transportation  companies  and  the  various  utilities  and  services 
of  the  state. 

The  commission  may  add  to  its  number  reporters  who  shall 
be  heard  on  the  matters  investigated  by  them.  This  commis- 
sion shall  give  its  advice  with  regard  to: 

1.  Schemes  to  be  adopted  by  the  municipalities. 

2.  Derogations  from  the  general  principles  of  planning 
laid  down  by  the  superior  commission  provided  for  below,  nec- 
essary on  account  of  special  difficulties  or  local  needs. 

3.  The  aesthetic  or  hygenic  servitudes  incidental  to  the 
schemes  submitted  to  it. 

4.  All  other  matters  referred  to  it  by  the  Prefect  of  the 
department. 

At  the  Ministry  of  the  Interior  of  the  state  there  shall 
created  a  superior  planning  commission  of  thirty  member' 
composed  of  senators,  deputies,  counsellors  of  state,  director? 
of  various  state  functions  and  delegates  from  state  societies, 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE      517 

etc.,  and  four  city  planners,  architects,  or  others  specially  qual- 
ified. This  commission  shall  establish  general  planning  rules 
and  regulations  and  shall  give  its  advice  on  all  schemes  con- 
sidered on  its  own  motion  or  referred  to  it  by  the  Minister  in 
charge  of  the  Liberated  Regions. 

When  a  scheme  has  been  drawn  up  it  shall,  after  the  advice 
of  the  sanitary  authorities  has  been  taken,  be  submitted  to: 

1.  Examination  by  the  Municipal  Council; 

2.  The  usual  "inquest"  37  preliminary  to  the  declaration 
of  public  utility  by  the  Council  of  State  or  other  state  authority 
as  required  in  expropriations;  at  which  all  parties  interested 
have  the  right  to  be  heard,  and  objections  are  referred  first 
to  the  Municipal  Council  and  then  to  the  Prefect  for  opinion 
and  preliminary  decision. 

3.  To  the  examination  of  the  departmental  planning  com- 
mission. 

The  Municipal  Council  shall  then  give  its  decision  on  the 
matter  as  a  whole ;  which  shall  thereupon  go  to  the  Council  of 
State,  where  the  town  contains  10,000  inhabitants  or  more, 
otherwise  to  the  Prefect  for  final  action;  approval  taking  the 
form  of  a  declaration  that  the  plan  is  of  public  utility. 

If  in  any  step  in  the  planning  the  city  does  not  act,  the  state 
is  given  power  to  do  so,  and  an  appropriate  penalty  is  visited  on 
the  city.  If  a  scheme  interests  more  than  one  commune,  or 
transcends  the  department,  intercommunal  or  inter-departmen- 
tal action  and  control  are  provided  for. 

Anyone  creating  or  developing  a  group  of  houses  is  re- 
quired first  to  deposit  the  plan  with  the  authorities  and  obtain 
the  approval  of  the  Prefect  of  the  department. 

After  a  plan  is  declared  of  public  utility,  or  in  the  case 
of  private  developments  is  approved  by  the  Prefect,  the  owners 
of  lands  abutting  on  proposed  highways  or  squares  shall  con- 
form to  the  lines  established  and  shall  not  erect  new  structures 
without  a  permit  from  the  mayor. 

17  Public  hearing. 


5i8  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Note  H 

THE  ENGLISH  AND  FRENCH  GENERAL  PLANNING 

LAWS 

No.  i 
THE  ENGLISH  TOWN  PLANNING  ACTS,  1909  AND  1919 

The  first  English  town  planning  act  was  passed  1909  as  Part  II 
of  the  Housing,  Town  Planning,  etc.,  Act,  1909,"  Part  I  of  this  act 
consisting  of  amendments  to  the  mass  of  previous  housing  legisla- 
tion codified  in  1890  and  subsequent  housing  laws  up  to  1909.  In 
1919  the  Housing,  Town  Planning,  etc.,  Act,  1919,"  was  enacted. 
That  act  comprises  a  first  part  amending  the  housing  laws  of  1890- 
1909  and  a  second  part  amending  the  planning  law.  The  housing 
legislation  is  now  referred  to  as  the  Housing  Acts,  1890  to  1919;  and 
the  planning  legislation  as  the  Town  Planning  Acts,  1909  and  ioi').*° 
It  is  with  the  planning  acts  that  this  work  is  concerned.  Part  II  of 
the  act  of  1909  as  amended  by  the  act  of  1919,  is  therefore  given  in 
full  with  the  exception  of  a  few  sections  of  no  interest  to  the  ordi- 
nary reader  or  student  in  this  country,  which  are  summarized.  For 
the  most  part  the  housing  law,  closely  connected  with  the  planning 
provisions,  but  an  important  and  voluminous  subject  in  itself,  is 
omitted,  as  is  housing  in  general  throughout  this  work.  An  excep- 
tion, however,  has  been  made  of  section  9. —  (i)  of  the  housing  por- 
tion of  the  act  of  1919,  and  the  schedule  relating  to  it,  on  account  of  its 
importance  in  the  replanning  of  slum  areas.41 

HOUSING,  TOWN  PLANNING,  ETC.,  ACT,   1919 

Provisions  as  to  the  Acquisition  and  Disposal  of  Land,  etc. 

SEC.  9.  Prorisions  as  to  Assessment  of  Compensation,  (i) 
Where  land  included  in  any  scheme  made  or  to  be  made  under  Part 
I.  or  Part  II.  of  the  principal  Act41  (other  than  land  included  in  such 
a  scheme  only  for  the  purpose  of  making  the  scheme  efficient  and 
not  on  account  of  the  sanitary  condition  of  the  premises  thereon  or 

"9  Edward  VII,  ch.  44. 

**9  and  10  George  V,  ch.  35. 

**See  sec.  52  of  the  act  of  1919. 

41  As  a  rule  no  effort  is  here  made,  for  fear  of  confusing  the  reader,  to 
distinguish  between  the  text  of  the  act  of  1009.  and  that  of  1919,  the  stu- 
dent wishing  to  do  so,  being  referred  to  the  original  acts,  which  are  rru'lily 
accessible.  For  clearness,  however,  certain  sections  of  the  acts  of  1909 
and  1919  have  been  so  designated. 

"I.  e.,  the  act  of  1909. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE     519 

of  those  premises  being  dangerous  or  prejudicial  to  health)  is  acquired 
compulsorily,  the  compensation  to  be  paid  for  the  land,  including  any 
buildings  thereon,  shall  be  the  value  at  the  time  the  valuation  is  made 
of  the  land  as  a  site  cleared  of  buildings  and  available  for  develop- 
ment in  accordance  with  the  requirements  of  the  building  byelaws 
for  the  time  being  in  force  in  the  district : 

Provided  that,  if  in  the  opinion  of  the  Local  Government  Board 
it  is  necessary  that  provision  should  be  made  by  the  scheme  for  the 
re-housing  of  persons  of  the  working  classes  on  the  land  or  part 
thereof  when  cleared,  or  that  the  land  or  a  part  thereof  when  cleared 
should  be  laid  out  as  an  open  space,  the  compensation  payable  to  all 
persons  interested  in  any  land  included  in  the  scheme  (other  than 
as  aforesaid)  for  their  respective  interests  therein  shall  be  reduced 
by  an  amount  ascertained  in  accordance  with  the  rules  set  forth  in 
the  First  Schedule  to  this  Act. 

FIRST   SCHEDULE 

Rules  for  Determining  the  Amount  of  Reduction  of  Compensation 

(a)  The  value  of  the  whole  of  the  land  included  in  the  scheme 
shall  first  be  ascertained  on  the  basis  of  its  value  as  a  cleared  site 
available  for  development  in  accordance  with  the  requirements  of 
the  building  byelaws  in  force  in  the  district. 

(&)  The  value  of  the  whole  of  the  said  land  shall  next  be  ascer- 
tained on  the  basis  of  its  value  as  a  cleared  site  subject  to  the  re- 
quirements of  the  scheme  as  to  the  provision  to  be  made  for  the  re- 
housing of  persons  of  the  working-classes  or  the  laying  out  of  open 
spaces  on  the  land  or  any  part  thereof. 

(c)  The  difference  between  the  amounts  ascertained  under  para- 
graph (a)   and  paragraph  (6)   shall  then  be  computed. 

(d)  The  amount  by  which  the  compensation  payable  for  the  re- 
spective interests  in  the  land  to  which  section  9. —  (i)   of  this  Act 
applies,  as  ascertained  in  accordance  with  the  principle  laid  down  in 
that  section,  is  to  be  reduced  shall  be  a  fraction  thereof  equal  to 
the  amount  arrived  at  under  paragraph    (c)   when  divided  by  the 
amount  arrived  at  under  paragraph  (a). 

TOWN  PLANNING  ACTS,   IQOQ  AND   IQIQ 

_54. — (i)43  Preparation  and  Approval  of  Town  Planning  Scheme. 
A  town  planning  scheme  may  be  made  in  accordance  with  the 
provisions  of  this  Part  of  this  Act  as  respects  any  land  which  is 
in  course  of  development  or  appears  likely  to  be  used  for  building 

"This  is  the  first  section  of  Part  II  of  the  Act  (of  1009).  Part  II 
is  the  town  planning  portion  of  the  Act;  Part  I,  with  its  fifty-three  sec- 
tions being  devoted  to  housing. 


5*>  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

purposes,  with  the  general  object  of  securing  proper  sanitary  condi- 
tions, amenity,  and  convenience  in  connection  with  the  laying  out 
and  use  of  the  land,  and  of  any  neighboring  lands. 

Provided  that  where  a  piece  of  land  already  built  upon  or  a  piece 
of  land  not  likely  to  be  used  for  building  purposes  is  so  situate  with 
respect  to  any  land  likely  to  be  used  for  building  purposes  that 
the  general  object  of  the  scheme  would  be  better  secured  by  its  in- 
clusion in  any  town  planning  scheme  made  with  respect  to  the  last 
mentioned  land,  the  scheme  may  include  such  piece  of  land  as  afore- 
said, and  may  provide  for  the  demolition  or  alteration  of  any  build- 
ings thereon  so  far  as  may  be  necessary  for  carrying  the  scheme  into 
effect. 

(2)  **  A  local  authority  within  the  meaning  of  this  Part  of  this 
Act  may  by  resolution  decide — 

(a)  to  prepare  a  town  planning  scheme  with  reference  to  any 
land  within  or  in  the  neighborhood  of  their  area  in  regard  to 
which  a  scheme  may  be  made  under  this  Act ;  or 
(&)  to  adopt,  with  or  without  any  modifications,  any  town  plan- 
ning scheme  proposed  by  all  or  any  of  the  owners  of  any 
land  with  respect  to  which  the  local"  authority  are  them- 
selves by  this  Act  authorized  to  prepare  a  scheme: 
Provided  that— 

(»)  if  any  such  resolution  of  a  local  authority  extends  to  land 
not  within  the  area  of  that  local  authority,  the  resolution 
shall  not  have  effect  until  it  is  approved  by  the  Local  Gov- 
ernment Board,  and  the  Board  may,  in  giving  their  ap- 
proval, vary  the  extent  of  the  land  to  be  included  within 
the  area  of  the  proposed  town  planning  scheme;  and 
(if)  where  any  local  authorities  are  desirous  of  acting  jointly 
in  the  preparation  or  adoption  of  a  town  planning  scheme, 
they  may  concur  in  appointing  out  of  their  respective  bodies 
a  joint  committee  for  the  purpose,  and  in  conferring  with 
or  without  restrictions  on  any  such  committee  any  powers 
which  the  appointing  councils  might  exercise  for  the  pur- 
pose, and  the  provisions  of  sections  fifty-seven  and  fifty- 
eight  of  the  Local  Government  Act,  1894,  in  regard  to 
joint  committees,  shall,  with  the  necessary  modifications, 
apply  to  any  joint  committee  so  appointed. 

(4)  A  town  planning  scheme  prepared  or  adopted  by  a  local 
authority  shall  not  have  effect,  unless  it  is  approved  by  order  of  the 

44  Paragraphs  (2)  and  (3)  of  the  act  of  1909  were  repealed  by  the 
act  of  1919;  which  substituted  paragraph  (2),  as  above,  for  paragraph 
(2)  in  the  old  act.  The  purpose  of  the  repeal  and  substitution  was  to 
remove  the  necessity,  formerly  existing  under  these  paragraphs  as  they 
were  in  the  act  of  1909.  for  the  local  authority  to  obtain  the  previous 
authorization  of  the  Local  Government  Board  to  the  preparation  or 
adoption  of  a  town  planning  scheme;  see  sec.  42  of  the  act  of  1919. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE     521 

Local  Government  Board,  and  the  Board  may  refuse  to  approve  any 
scheme  except  with  such  modifications  and  subject  to  such  conditions 
as  they  think  fit  to  impose : 

(5)  A  town  planning  scheme,  when  approved  by  the  Local  Gov- 
ernment Board,  shall  have  effect  as  if  it  were  enacted  in  this  Act. 

(6)  A  town  planning  scheme  may  be  varied  or  revoked  by  a 
subsequent  scheme  prepared  or  adopted  and  approved  in  accordance 
with  this  Part  of  this  Act,  and  the  Local  Government  Board,  on  the 
application  of  the  responsible  authority,  or  of  any  other  person  appear- 
ing to  them  to  be  interested,  may  by  order  revoke  a  town  planning 
scheme  if  they  think  that  under  the  special  circumstances  of  the  case 
the  scheme  should  be  so  revoked. 

(7)  The  expression  "land  likely  to  be  used  for  building  pur- 
poses" shall  include  any  land  likely  to  be  used  as,  or  for  the  purpose 
of  providing,  open  spaces,  roads,  streets,  parks,  pleasure  or  recreation 
grounds,  or  for  the  purpose  of  executing  any  work  upon  or  under 
the  land  incidental  to  a  town  planning  scheme,  whether  in  the  nature 
of  a  building  work  or  not,  and  the  decision  of  the  Local  Government 
Board,  whether  land  is  likely  to  be  used  for  building  purposes  or 
not,  shall  be  final. 

55. —  (i)  Contents  of  Town  Planning  Schemes.  The  Local  Gov- 
ernment Board  may  prescribe  a  set  of  general  provisions  (or  sepa- 
rate sets  of  general  provisions  adapted  for  areas  of  any  special 
character)  for  carrying  out  the  general  objects  of  town  planning 
schemes,  and  in  particular  for  dealing  with  the  matters  set  out  in 
the  Fourth  Schedule  to  this  Act,  and  the  general  provisions,  or  set 
of  general  provisions  appropriate  to  the  area  for  which  a  town  plan- 
ning scheme  is  made,  shall  take  effect  as  part  of  every  scheme,  except 
so  far  as  provision  is  made  by  the  scheme  as  approved  by  the  Board 
for  the  variation  or  exclusion  of  any  of  those  provisions. 

(2)  Special  provisions  shall  in  addition  be  inserted  in  every 
town  planning  scheme  defining  in  such  manner  as  may  be  prescribed 
by  regulations  under  this  Part  of  this  Act  the  area  to  which  the 
scheme  is  to  apply,  and  the  authority  who  are  to  be  responsible  for 
enforcing  the  observance  of  the  scheme,  and  for  the  execution  of  any 
works  which  under  the  scheme  or  this  Part  of  this  Act  are  to  be 
executed  by  a  local  authority  (in  this  Part  of  this  Act  referred  to 
as  the  responsible  authority),  and  providing  for  any  matters  which 
may  be  dealt  with  by  general  provisions,  and  otherwise  supplement- 
ing, excluding,  or  varying  the  general  provisions,  and  also  for  deal- 
ing with  any  special  circumstances  or  contingencies  for  which  ade- 
quate provision  is  not  made  by  the  general  provisions,  and  for  sus- 
pending, so  far  as  necessary  for  the  proper  carrying  out  of  the 
scheme,  any  statutory  enactments,  byelaws,  regulations,  or  other  pro- 
visions, under  whatever  authority  made,  which  are  in  operation  in 
the  area  included  in  the  scheme : 


$22  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

(3)  Where  land  included  in  a  town  planning  scheme  is  in  the 
area  of  more  than  one  local  authority,  or  is  in  the  area  of  a  local 
authority  by  whom  the  scheme  was  not  prepared,  the  responsible 
authority  may  be  one  of  those  local  authorities,  or  for  certain  pur- 
poses of  the  scheme  one  local  authority  and  for  certain  purposes 
another  local  authority,  or  a  joint  body  constituted  specially  for  the 
purpose  by  the  scheme,  and  all  necessary  provisions  may  be  made 
by  the  scheme  for  constituting  the  joint  body  and  giving  them  the 
necessary  powers  and  duties : 

Provided  that,  except  with  the  consent  of  the  London  County 
Council,  no  other  local  authority  shall,  as  respects  any  land  in  the 
county  of  London,  prepare  or  be  responsible  for  enforcing  the  observ- 
ance of  a  town  planning  scheme  under  this  Part  of  this  Act,  or  for 
the  execution  of  any  works  which  under  the  scheme  or  this  Part  of 
this  Act  are  to  be  executed  by  a  local  authority. 

56. — (i)  Procedure  Regulations  of  the  Local  Government  Board. 
The  Local  Government  Board  may  make  regulations  for  regulating 
generally  the  procedure  to  be  adopted  with  respect  to  the  prepara- 
tion or  adoption  of  a  town  planning  scheme,  obtaining  the  ap- 
proval of  the  Board  to  a  scheme  so  prepared  or  adopted,  the  varia- 
tion or  revocation  of  a  scheme,  and  any  inquiries,  reports,  notices, 
or  other  matters  required  in  connection  with  the  preparation  or  adop- 
tion or  the  approval  of  the  scheme  or  preliminary  thereto,  or  in  re- 
lation to  the  carrying  out  of  the  scheme  or  enforcing  the  observance 
of  the  provisions  thereof,  or  the  variation  or  revocation  of  the 
scheme. 

The  power  of  the  Local  Government  Board  of  making  regulations 
under  section  56  of  the  Act  of  1909  shall  include  power  to  make  regu- 
lations as  to  the  procedure  consequent  on  the  passing  of  a  resolution  by 
a  local  authority  to  prepare  or  adopt  a  town  planning  scheme,  and 
provision  shall  be  made  by  those  regulations  for  securing  that  a  local 
authority  after  passing  such  a  resolution  shall  proceed  with  all  rea- 
sonable speed  with  the  preparation  or  adoption  of  the  town  planning 
scheme,  and  shall  comply  with  any  regulations  as  to  steps  to  be  taken 
for  that  purpose,  including  provisions  enabling  the  Local  Govern- 
ment Board  in  the  case  of  default  or  dilatoriness  on  the  part  of 
the  local  authority  to  act  in  the  place  and  at  the  expense  of  the  local 
authority. 

(2)     Provision  shall  be  made  by  those  regulations — 

(a)  for  securing  co-operation  on  the  part  of  the  local  authority 
with  the  owners  and  other  persons  interested  in  the  land  proposed 
to  be  included  in  the  scheme  by  such  means  as  may  be  provided  by 
the  regulations ; 

(6)  for  securing  that  notice  of  the  proposal  to  prepare  or  adopt 
the  scheme  should  be  given  at  the  earliest  stage  possible  to  any  coun- 
cil interested  in  the  land;  and 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE     523 

(c)  for  dealing  with  the  other  matters  mentioned  in  the  Fifth 
Schedule  to  this  Act. 

For  securing  that  the  council  of  the  county  in  which  any  land 
proposed  to  be  included  in  a  town  planning  scheme  is  situated  (i) 
shall  be  furnished  with  a  notice  of  any  proposal  to  prepare  or  adopt 
such  a  scheme  and  with  a  copy  of  the  draft  scheme  before  the  scheme 
is  made,  and  (2)  shall  be  entitled  to  be  heard  at  any  public  local 
inquiry  held  by  the  Local  Government  Board  in  regard  to  the  scheme.46 

57. — (i)  Power  to  Enforce  Scheme.  The  responsible  authority  may 
at  any  time,  after  giving  such  notice  as  may  be  provided  by  a  town 
planning  scheme  and  in  accordance  with  the  provisions  of  the 
scheme — 

(a)  remove,  pull  down,  or  alter  any  building  or  other  work  in  the 
area  included  in  the  scheme  which  is  such  as  to  contravene  the  scheme, 
or  in  the  erection  or  carrying  out  of  which  any  provision  of  the 
scheme  has  not  been  complied  with;  or 

(6)  execute  any  work  which  it  is  the  duty  of  any  person  to 
execute  under  the  scheme  in  any  case  where  it  appears  to  the  au- 
thority that  delay  in  the  execution  of  the  work  would  prejudice  the 
efficient  operation  of  the  scheme. 

(2)  Any  expenses  incurred  by  a  responsible  authority  under  this 
section  may  be  recovered  from  the  persons  in  default  in  such  manner 
and  subject  to  such  conditions  as  may  be  provided  by  the  scheme. 

(3)  If  any  question  arises  whether  any  building  or  work  con- 
travenes a  town  planning  scheme,  or  whether  any  provision  of  a 
town  planning  scheme  is  not  complied  with  in  the  erection  or  carry- 
ing out  of  any  such  building  or  work,  that  question  shall  be  referred 
to  the  Local  Government  Board,  and  shall,  unless  the  parties  other- 
wise agree,  be  determined  by  the  Board  as  arbitrators,  and  the  de- 
cision of  the  Board  shall  be  final  and  conclusive  and  binding  on  all 
persons. 

58. — ( i )  Compensation  in  Respect  of  Property  Injuriously  Affected 
by  Scheme,  etc.  Any  person  whose  property  is  injuriously  affected 
by  the  making  of  a  town  planning  scheme  shall,  if  he  makes  a  claim 
for  the  purpose  within  the  time  (if  any)  limited  by  the  scheme,  not 
being  less  than  three  months  after  the  date  when  notice  of  the 
approval  of  the  scheme  is  published  in  the  manner  prescribed  by 
regulations  made  by  the  Local  Government  Board,  be  entitled  to 
obtain  compensation  in  respect  thereof  from  the  responsible  authority. 

(2)  A  person  shall  not  be  entitled  to  obtain  compensation  under 
this  section  on  account  of  any  building  erected  on,  or  contract  made 
or  other  thing  done  with  respect  to,  land  included  in  a  scheme,  after 
the  date  of  the  resolution  of  the  local  authority  to  prepare  or  adopt 

"This  division,  inserted  by  the  act  of  1919,  is  virtually  (d),  but  is  not 
designated  in  this  or  any  way  in  the  act. 


524  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  scheme  or  after  the  date  when  such  resolution  takes  effect  as  the 
case  may  be,  or  after  such  other  time  as  the  Local  Government  Board 
may  fix  for  the  purpose: 

Provided  that  this  provision  shall  not  apply  as  respects  any  work 
done  before  the  date  of  the  approval  of  the  scheme  for  the  purpose 
of  finishing  a  building  begun  or  of  carrying  out  a  contract  entered 
into  before  such  date  or  other  time  as  aforesaid. 

Power  to  Permit  Development  of  Estates  Pending  Preparation 
and  Approval  of  Town  Planning  Schemes.  The  Local  Government 
Board  may  by  special  or  general  order  provide  that  where  a  resolu- 
tion to  prepare  or  adopt  a  town  planning  scheme  has  been  passed, 
or  where  before  the  passing  of  this  Act,4*  the  preparation  or  adop- 
tion of  a  town  planning  scheme  has  been  authorised,  the  development 
of  estates  and  building  operations  may  be  permitted  to  proceed  pend- 
ing the  preparation  or  adoption  and  approval  of  the  town  planning 
scheme,  subject  to  such  conditions  as  may  be  prescribed  by  the  order, 
and  where  such  permission  has  been  given  the  provisions  of  subsec- 
tion (2)  of  section  58  of  the  Act  of  1909  which  relates  to  the  rights 
of  compensation  shall  have  effect  as  if  the  following  proviso  were 
added  thereto: 

Provided  also  that  this  provision  shall  not  apply  as  respects  any 
building  erected,  contract  made,  or  other  thing  done  in  accordance 
with  a  permission  granted  in  pursuance  of  an  order  of  the  Local 
Government  Board  allowing  the  development  of  estates  and  building 
operations  to  proceed  pending  the  preparation  or  adoption  and  ap- 
proval of  the  scheme,  and  the  carrying  out  of  works  so  permitted 
shall  not  prejudice  any  claim  of  any  person  to  compensation  in  re- 
spect of  property  injuriously  affected  by  the  making  of  the  scheme, 

(3)  Where,  by  the  making  of  any  town  planning  scheme,  any 
property  is  increased  in  value,  the  responsible  authority,  if  they  make 
a  claim   for  the  purpose  within  the  time    (if   any)    limited  by  the 
scheme  (not  being  less  than  three  months  after  the  date  when  notice 
of  the  approval  of  the  scheme  is  first  published  in  the  manner  pre- 
scribed by  regulations  made  by  the  Local  Government  Board),  shall 
be  entitled  to  recover  from  any  person  whose  property  is  so  increased 
in  value  one-half  of  the  amount  of  that  increase. 

(4)  Any  question  as  to  whether  any  property  is  injuriously  af- 
fected or  increased  in  value  within  the  meaning  of  this  section,  and 
as  to  the  amount  and  manner  of  payment   (whether  by  installments 
or  otherwise)  of  the  sum  which  is  to  be  paid  as  compensation  under 
this  section  or  which  the  responsible  authority  are  entitled  to  recover 
from  a  person  whose  property  is  increased  in  value,  shall  be  deter- 
mined by  the  arbitration  of  a  single  arbitrator  appointed  by  the  Local 

**  I.  c ,  the  act  of  1919,  this  paragraph  being  an  amendment  of  the  act 
of  1909,  made  by  the  act  of  1919. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE     525 

Government  Board,  unless  the  parties  agree  on  some  other  method  of 
determination. 

(5)  Any  amount  due  under  this  section  as  compensation  to  a 
person  aggrieved  from  a  responsible  authority,  or  to  a  responsible 
authority  from  a  person  whose  property  is  increased  in  value,  may 
be  recovered  summarily  as  a  civil  debt. 

(6)  Where  a  town  planning  scheme  is  revoked  by  an  order  of 
the  Local  Government  Board  under  this  Act,  any  person  who  has 
incurred  expenditure  for  the  purpose  of  complying  with  the  scheme 
shall  be  entitled  to  compensation  in  accordance  with  this  section  in  so 
far  as  any  such  expenditure  is  rendered  abortive  by  reason  of  the 
revocation  of  the  scheme. 

59. —  (i)  Exclusion  or  Limitation  of  Compensation  in  Certain 
Cases.  Where  property  is  alleged  to  be  injuriously  affected  by  reason 
of  any  provisions  contained  in  a  town  planning  scheme,  no  compensa- 
tion shall  be  paid  in  respect  thereof  if  or  so  far  as  the  provisions  are 
such  as  would  have  been  enforceable  if  they  had  been  contained  in 
byelaws  made  by  the  local  authority. 

(2)  Property  shall  not  be  deemed  to  be  injuriously  affected  by 
reason  of  the  making  of  any  provisions  inserted  in  a  town  planning 
scheme,  which  prescribe  the  space  about  buildings  or  limit  the  num- 
ber of  buildings  to  be  erected,  or  prescribe  the  height  or  character  of 
buildings,  and  which  the  Local  Government  Board,  having  regard  to 
the  nature  and  situation  of  the  land  affected  by  the  provisions,  con- 
sider reasonable  for  the  purpose. 

(3)  Where  a  person  is  entitled  to  compensation  under  this  Part 
of  this   Act  in  respect  of   any  matter  or  thing,   and  he   would  be 
entitled  to  compensation  in  respect  of  the  same  matter  or  thing  under 
any  other   enactment,   he   shall   not  be   entitled  to  compensation   in 
respect  of  that  matter  or  thing  both  under  this  Act  and  under  that 
other  enactment,  and  shall  not  be  entitled  to  any  greater  compensa- 
tion under  this  Act  than  he  would  be  entitled  to  under  the  other 
enactment. 

60. —  (i)  Acquisition  by  Local  Authorities  of  Land  Comprised  in 
a  Scheme.  The  responsible  authority  may,  for  the  purpose  of  a  town 
planning  scheme,  purchase  any  land  comprised  in  such  scheme  by 
agreement,  or  be  authorised  to  purchase  any  such  land  compulsorily 
in  the  same  manner  and  subject  to  the  same  provisions  (includ- 
ing any  provision  authorising  the  Local  Government  Board  to  give 
directions  as  to  the  payment  and  application  of  any  purchase  money 
or  compensation)  as  a  local  authority  may  purchase  or  be  authorised 
to  purchase  land  situate  in  an  urban  district  for  the  purposes  of  Part 
III.  of  the  Housing  of  the  Working  Classes  Act,  1890,  as  amended 
by  sections  two  and  forty-five  of  this  Act.*T 

47  I.  e.,  the  act  of  1909. 


£26  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

(2)  Where  land  included  within  the  area  of  a  local  authority 
is  comprised  in  a  town  planning  scheme,  and  the  local  authority  are 
not  the  responsible  authority,  the  local  authority  may  purchase  or  be 
authorised  to  purchase  that  land  in  the  same  manner  as  the  respon- 
sible authority. 

61. — (i)  Power  of  Local  Government  Board  in  Case  of  Default 
of  Local  Authority  to  Make  or  Execute  Town  Planning  Scheme. 
If  the  Local  Government  Board  are  satisfied  on  any  representation, 
after  holding  a  public  local  inquiry,  that  a  local  authority — 

(a)  have  failed  to  take  the  requisite  steps  for  having  a  satis- 
factory town  planning  scheme  prepared  and  approved  in  a 
case  where  a  town  planning  scheme  ought  to  be  made ;  or 
(&)  have   failed  to  adopt  any   scheme   proposed  by   owners  of 
any  land  in  a  case  where  the  scheme  ought  to  be  adopted;  or 
(c)  have  unreasonably  refused  to  consent  to  any  modifications 

or  conditions  imposed  by  the  Board; 

the  Board  may,  as  the  case  requires,  order  the  local  authority  to  pre- 
pare and  submit  for  the  approval  of  the  Board  such  a  town  planning 
scheme,  or  to  adopt  the  scheme,  or  to  consent  to  the  modifications  or 
conditions  so  inserted: 

Provided  that,  where  the  representation  is  that  a  local  authority 
have  failed  to  adopt  a  scheme,  the  Local  Government  Board,  in  lieu 
of  making  such  an  order  as  aforesaid,  may  approve  the  proposed 
scheme,  subject  to  such  modifications  or  conditions,  if  any,  as  the 
Board  think  fit,  and  thereupon  the  scheme  shall  have  effect  as  if  it 
had  been  adopted  by  the  local  authority  and  approved  by  the  Board. 

(2)  If  the  Local  Government  Board  are  satisfied  on  any  repre- 
sentation, after  holding  a  local  inquiry,  that  a  responsible  authority 
have  failed  to  enforce  effectively  the  observance  of  a  scheme  which 
has  been  confirmed,  or  any  provisions  thereof,  or  to  execute  any 
works  which  under  the  scheme  or  this  Part  of  this  Act 4t*  the  authority 
is  required  to  execute,  the  Board  may  order  that  authority  to  do  all 
things  necessary  for  enforcing  the  observance  of  the  scheme  or  any 
provisions   thereof   effectively,   or   for   executing   any   works   which 
under  the  scheme  or  this  Part  of  this  Act 4U  the  authority  is  required 
to  execute. 

(3)  Any  order  under  this  section  may  be  enforced  by  man- 
damus. 


PART  IV 

SUPPLEMENTAL 

73. — (i)   Provisions  as  to  Commons  and  Open  Spaces.     Where 
any  scheme  or  order  under  the  Housing  Acts  of  Part  II.  of  this 

•'  I.  e.,  the  act  of  1909. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE      527 

Act  authorises  the  acquisition  or  appropriation  to  any  other  pur- 
pose of  any  land  forming  part  of  any  common,  open  space,  or  allot- 
ment, the  scheme  or  order,  so  far  as  it  relates  to  the  acquisition  or 
appropriation  of  such  land,  shall  be  provisional  only,  and  shall  not 
have  effect  unless  and  until  it  is  confirmed  by  Parliament,  except 
where  the  scheme  or  order  provides  for  giving  in  exchange  for  such 
land  other  land,  not  being  less  in  area,  certified  by  the  Local  Govern- 
ment Board  after  consultation  with  the  Board  of  Agriculture  and 
Fisheries  to  be  equally  advantageous  to  the  persons,  if  any,  entitled 
to  commonable  or  other  rights  and  to  the  public. 

ACT  OF  1919 

46. — (i)  Preparation  of  Town  Planning  Schemes.  The  council 
of  every  borough  or  other  urban  district  containing  on  the  first 
day  of  January  nineteen  hundred  and  twenty-three  a  population 
according  to  the  last  census  for  the  time  being  of  more  than  twenty 
thousand  shall,  within  three  years  after  that  date,  prepare  and  sub- 
mit to  the  Local  Government  Board  a  town  planning  scheme  in  respect 
of  all  land  within  the  borough  or  urban  district  in  respect  of  which  a 
town  planning  scheme  may  be  made  under  the  Act  of  1909. 

(2)  Without  prejudice  to  the  powers  of  the  council  under  the 
Act  of  1909,  every  scheme  to  which  this  section  applies  shall  deal 
with  such  matters  as  may  be  determined  by  regulations  to  be  made 
by  the  Local  Government  Board. 

(3)  Every  regulation  so  made  shall  be  laid  before  both  Houses 
of  Parliament  as  soon  as  may  be  after  it  is  made,  and,  if  an  address 
is  presented  by  either  House  within  twenty-one  days  on  which  that 
House  has  sat  next  after  any  such  regulation  is  laid  before  it  pray- 
ing that  the  regulation  may  be   annulled,   His   Majesty  in  Council 
may  annul  the  regulation,  but  without  prejudice  to  the  validity  of 
anything  previously  done  thereunder. 

47. —  (i)  Power  of  Local  Government  Board  to  Require  Town 
Planning  Scheme.  Where  the  Local  Government  Board  are  satis- 
fied after  holding  a  public  local  inquiry  that  a  town  planning  scheme 
ought  to  be  made  by  a  local  authority  as  respects  any  land  in  regard 
to  which  a  town  planning  scheme  may  be  made  under  the  Act 
of  1909,  the  Board  may  by  order,  require  the  local  authority  to 
prepare  and  submit  for  their  approval  such  a  scheme,  and,  if  the 
scheme  is  approved  by  the  Board,  to  do  all  things  necessary  for 
enforcing  the  observance  of  the  scheme  or  any  provisions  thereof 
effectively,  and  for  executing  any  works  which,  under  the  scheme  or 
under  Part  II.  of  the  Act  of  1909,  the  authority  are  required  to 
execute. 

(2)  Any  order  made  by  the  Local  Government  Board  under 
this  section  shall  have  the  same  effect  as  a  resolution  of  the  local 


528  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

authority  deciding  to  prepare  a  town  planning  scheme  in  respect  of 
the  area  in  regard  to  which  the  order  is  made. 

(3)  If  the  local  authority  fail  to  prepare  a  scheme  to  the  satis- 
faction of  the  Board  within  such  time  as  may  be  prescribed  by  the 
order,  or  to  enforce  the  observance  of  the  scheme  or  any  provisions 
thereof  effectively,  or  to  execute  any  such  works  as  aforesaid,  the 
Board  may  themselves  act,  or  in  the  case  of  a  borough  or  other  urban 
district,  the  population  of  which  is  less  than  20,000,  or  of  a  rural 
district,  may,  if  the  Board  think  fit,  by  order,  empower  the  county 
council  to  act  in  the  place  and  at  the  expense  of  the  local  authority. 


FOURTH   SCHEDULE 

MATTERS    TO    BE    DEALT    WITH    BY    GENERAL    PROVISIONS    PRESCRIBED    BY 
THE    LOCAL    GOVERNMENT    BOARD 

1.  Streets,  roads,  and  other  ways,  and  stopping  up,  or  diversion 
of  existing  highways. 

2.  Buildings,  structures,  and  erections. 

3.  Open  spaces,  private  and  public. 

4.  The  preservation  of  objects  of  historical  interest  or  natural 
beauty. 

5.  Sewerage,  drainage,  and  sewage  disposal. 

6.  Lighting. 

7.  Water  supply. 

8.  Ancillary  or  consequential  works. 

9.  Extinction  or  variation  of  private  rights  of  way  and  other 
easements. 

10.  Dealing  with  or  disposal  of  land  acquired  by  the  responsible 
authority  or  by  a  local  authority. 

11.  Power  of  entry  and  inspection. 

12.  Power   of   the    responsible    authority    to    remove,    alter,    or 
demolish  any  obstructive  work. 

13.  Power  of  the  responsible  authority  to  make  agreements  with 
owners,  and  of  owners  to  make  agreements  with  one  another. 

14.  Power  of  the  responsible  authority  or  a  local  authority  to 
accept  any  money  or  property  for  the  furtherance  of  the  object  of 
any  town  planning  scheme,  and  provision  for  regulating  the  admin- 
istration of  any  such  money  or  property  and  for  the  exemption  of 
any  assurance  with  respect  to  money  or  property  so  accepted  from 
enrollment  under  the  Mortmain  and  Charitable  Uses  Act,  1888. 

15.  Application  with  the  necessary  modifications  and  adaptations 
of  statutory  enactments. 

•Act  of  1909,  as  amended  by  Act  of  1919. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE     529 

16.  Carrying  out  and  supplementing  the  provisions  of  this  Act 
for  enforcing  schemes. 

17.  Limitation  of  time  for  operation  of  scheme. 

18.  Cooperation  of  the  responsible  authority  with  the  owners  of 
land  included  in  the  scheme  or  other  persons  interested. 

19.  Charging  on  the  inheritance  of  any  land  the  value  of  which 
is  increased  by  the  operation  of  a  town-planning  scheme  the  sum 
required  to  be  paid  in  respect  of  that  increase,  and  for  that  purpose 
applying,  with  the  necessary  adaptations,  the  provisions  of  any  enact- 
ments dealing  with  charges  for  improvements  of  land. 


No.  2.    THE  FRENCH  PLANNING  LAW  OF  1919 


ART.  I.  Every  city  of  10,000  inhabitants  and  over  shall,  without 
prejudice  to  the  general  plan  of  street  and  building  lines  and  grades 
required  of  all  communes  by  art.  136,  par.  13  °°  of  the  law  of  April 
5,  1884,  prepare  a  scheme  of  subdivision,  adornment  and  extension.51 

This  scheme,  which  shall  be  established  within  three  years  of  the 
promulgation  of  the  present  law,  shall  include: 

I  St.  A  plan  which  shall  fix  the  direction,  the  width  and  the 
character  of  highways  to  be  laid  out  or  changed,  determine  the  loca- 
tion, extent  and  plan  of  squares,  public  gardens,  play  grounds,  parks, 
the  various  sorts  of  open  spaces,  and  indicate  the  reservations, 
wooded  or  otherwise,  to  be  established,  as  well  as  the  sites  of  public 
monuments,  buildings,  utilities  and  other  services; 

2nd.  A  program  determining  the  public  hygienic,  archaeological 
and  aesthetic  servitudes  51a  and  all  the  other  conditions  relative  thereto, 
especially  the  open  spaces  to  be  reserved,  the  height  of  structures,  as 
well  as  the  provisions  for  the  distribution  of  drinking  water,  the 
sewers,  the  disposition  of  waste  products,  and,  if  necessary,  the  sani- 
tation of  the  soil; 

3rd.  The  draft  of  an  order  w  of  the  Mayor,  made  with  the  advice 
of  the  Municipal  Council,  fixing  the  conditions  of  the  application  of 
the  measures  to  be  taken  to  the  plan  and  to  the  program. 

*  Passed  March  14,  1919,  to  be  found  in  the  Bulletin  des  lois  for  that 
year,  p.  558  (No.  13850). 

"The  reference  should  be  to  paragraph  14. 

"I.  e.,  a  city  plan. 

""  Known  as  easements  in  our  law. 

10  "Pro  jet  d'arrete." 


530  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  same  duties  are  imposed: 

ist.     On  all  the  communes  of  the  Department  of  the  Seine; 

2nd.  On  cities  of  over  5,000  but  less  than  10,000  inhabitants,  the 
population  of  which  has  increased  more  than  10  per  cent  in  the 
interval  between  two  consecutive  quinquennial  censuses; 

3rd.  On  seaside,  mineral  spring  and  other  pleasure  and  health 
resorts  whose  population,  of  whatever  size,  increases  50  per  cent  or 
more  at  certain  seasons  of  the  year.** 

4th.  On  settlements,  of  whatever  size,  of  a  picturesque,  artistic 
or  historic  character,  inscribed  in  a  list  to  be  drawn  up  by  the  Depart- 
mental Commissions  on  Natural  Sites  and  Monuments  created  by  the 
law  of  April  21,  1906;  M 

5th.  On  groups  of  houses  or  lots  made  or  developed  by  associa- 
tions, corporations  or  individuals. 

ART.  2.  When  a  settlement,  whatever  its  population,  has  been 
totally  or  partially  destroyed  by  acts  of  war,  fire,  earthquake  or  any 
other  catastrophe,  the  municipality  shall  establish,  within  three 
months,  the  general  plan  of  street  and  building  lines  and  grades  of 
the  districts  to  be  reconstructed,  as  provided  by  the  law  of  April  5, 
1884,  accompanied  by  a  summary  of  the  scheme  of  subdivision,  adorn- 
ment and  extension  provided  for  in  art.  I  of  the  present  law. 

An  order  of  the  Prefect,  made  after  having  received  the  advice  of 
the  commission  instituted  by  art.  4  of  the  present  law,  shall  deter- 
mine whether  the  settlement  is  within  the  conditions  laid  down  in  the 
first  sentence  above  and  fix  the  date  from  which  the  time  runs. 

Until  the  plan  of  building  and  street  lines  and  of  grades  is  ap- 
proved, no  structure  shall  be  erected  except  temporary  shelters  with- 
out the  authority  of  the  Prefect  given  after  the  advice  of  the  com- 
mission instituted  by  art.  4  below  has  been  taken. 

ART.  3.  The  costs  of  preparing  the  plans  and  schemes  provided 
for  in  the  preceding  articles  are  a  state  charge  in  so  far  as  the  com- 
munes indicated  in  art.  2  above  are  concerned,  notwithstanding  the 
principle  laid  down  by  art.  136,  par.  13"*  of  the  Municipal  Law  of 
April  5,  1884. 

The  same  is  true  of  the  settlements  mentioned  in  No.  4  of  the 
enumeration  contained  in  art.  I  of  the  present  law. 

For  other  communes  subventions  may  be  accorded  by  decision  of 
the  Minister  of  the  Interior,  rendered  on  the  application  of  the  Pre- 

*  Under  the  French  law  of  April  13,  1910,  a  decree  of  the  Council  of 
State,  rendered  after  hearing  the  Academy  of  Medicine,  the  Superior 
Council  of  Public  Hygiene  of  France  and  the  Permanent  Commission  on 
such  resorts,  must  be  obtained,  prior  to  founding  them ;  and  on  petition 
of  the  commune  a  special  tax  on  non-residents  may  be  authorized  for 
their  development. 

**  See  p.  422  of  this  work. 

**Here  again,  the  reference  should  be  to  par.  14. 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE     53* 

feet  of  the  department  and  charged  to  the  credits  voted  for  that  pur- 
pose in  the  budget  of  the  Minister  of  the  Interior,  to  an  amount  to 
be  fixed  by  a  decree  rendered  in  the  form  of  rules  of  public  admin- 
istration. 

ART.  4.  In  the  prefecture  of  each  department  there  shall  be 
created  a  commission,  to  be  presided  over  by  the  Prefect  or  his  rep- 
resentative and  called  the  "Departmental  Commission  for  the  Plan- 
ning of  Cities  and  Villages,"  composed  of  the  Departmental  Coun- 
cil of  Hygiene,  the  Departmental  Commission  on  Natural  Sites  and 
Monuments,  the  Departmental  Council  on  Civic  Buildings,  and  four 
mayors  to  be  named  by  the  General  Council.5* 

This  commission  shall  hear  the  delegates  of  the  societies  of  archi- 
tecture, art,  archaeology,  history,  agriculture,  commerce,  industry  and 
sport  and  of  the  transportation  companies  of  the  department,  as  well 
as  the  mayors  of  the  cities  or  communes  interested,  and  the  repre- 
sentatives of  the  different  public  utilities  and  other  services  of  the 
state  which  it  considers  necessary  to  convoke  and  who  ask  an  oppor- 
tunity to  present  their  views. 

It  may  also  add  reporters,67  with  the  right  to  be  heard  with  regard 
to  the  matters  on  which  they  report. 

This  commission  shall  collect  all  the  necessary  documents  of  such 
a  nature  as  to  aid  and  guide  the  communes  in  the  preparation  of  their 
schemes. 

It  shall  give  its  opinion: 

I st.    With  regard  to  the  schemes  adopted  by  the  municipalities. 

2nd.  With  regard  to  the  departures  which,  on  account  of  special 
difficulties  or  local  needs,  must  be  made  from  the  principles  laid  down 
by  the  Superior  Council  created  by  art.  5  below. 

3rd.  With  regard  to  the  aesthetic  or  hygienic  servitudes  inci- 
dental to  the  schemes  which  are  submitted  to  it. 

4th.  With  regard  to  all  matters  which  the  prefect  considers 
expedient  to  submit  to  it. 

ART.  5.  There  shall  be  instituted  at  the  Ministry  of  the  Interior, 
under  the  presidency  of  the  Minister  or  his  deputy,  and  the  vice 
presidency  of  the  Minister  in  charge  of  the  Liberated  Regions  or  his 
deputy,  a  Superior  Planning  Commission  composed  of: 

Two  senators,  chosen  by  the  Senate; 
Four  deputies,  chosen  by  the  Chamber  of  Deputies; 
Two  Counsellors  of  State,  in  ordinary  service,  named  by  their 
colleagues ; 

*  "Conseil  General." 

M  The  French  word  is  "rapporteurs."  They  are  persons  with  special 
information  in  particular  lines  and  are  usually,  as  here,  given  the  right 
not  only  to  report  but  to  vote  on  the  matter  with  relation  to  which  they 
are  employed.  They  need  not  be,  technically,  experts. 


532  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

Four  mayors,  of  whom  three  shall  be  named  by  the  Minister  of 
the  Interior  and  one  by  the  Minister  in  charge  of  the  Liberated 
Regions,  of  whom  two  shall  represent  communes  of  from  20,000  to 
50,000  inhabitants,  and  two,  communes  of  over  50,000  inhabitants; 

The  Director  of  Departmental  and  Communal  Administration  at 
the  Ministry  of  the  Interior; 

The  Director  of  Public  Charity  and  of  Hygiene  at  the  Ministry 
of  the  Interior; 

Four  members  of  the  Superior  Council  of  Public  Hygiene,  named 
by  their  colleagues; 

Four  members  of  the  Superior  Council  of  Fine  Arts,  named  by 
their  colleagues; 

Four  members  of  the  General  Council  on  Civic  Buildings,  named 
by  their  colleagues; 

Four  members,  chosen  from  among  the  city  planners,  architects, 
and  other  persons  particularly  qualified,  named:  two  by  the  Minister 
in  charge  of  the  Liberated  Regions,  and  two  by  the  Minister  of  the 
Interior. 

The  Council  may  add  to  its  numbers  reporters  with  the  right  to 
be  heard  on  the  matters  in  which  they  report. 

This  commission  is  charged  with  the  duty  of  establishing  general 
rules  to  guide  the  municipalities  in  the  application  of  the  present  law, 
and  of  giving  its  advice  with  regard  to  all  questions  and  all  schemes 
which  are  referred  to  it  by  the  Minister  of  the  Interior  or  the  Min- 
ister in  charge  of  the  Liberated  Regions,  either  of  their  own  motion 
or  on  the  request  of  the  commission  itself,  by  resolution  with  the 
reasons  therefor  annexed. 

ART.  6.  When  the  scheme  concerns  only  one  commune,  and 
except  in  the  case  provided  for  in  par.  5  of  art.  i,  governed  by 
art.  8  below,  with  regard  to  groups  of  houses,  the  Municipal  Coun- 
cil, at  the  instance  of  the  Mayor,  shall  name  the  expert  or  the 
society  to  be  employed  for  the  study  and  preparation  of  the  plans  and 
schemes. 

If  within  two  months  of  the  promulgation  of  the  present  law  this 
designation  has  not  been  made,  the  Prefect  shall  declare  the  Municipal 
Council  in  default  if  it  does  not  proceed  to  do  so  within  one  month; 
after  the  expiration  of  which  he  shall  of  his  own  motion  make  the 
necessary  designation. 

If  the  plan  has  not  been  established  within  the  time  allowed  by 
art.  i  and  2,  above,  the  Prefect  shall  of  his  own  motion  cause 
the  work  to  proceed  at  the  expense  of  the  commune,  and  it  shall  for- 
feit its  right  to  subventions  provided  for  in  art.  3,  par.  3,  of  the 
present  law. 

ART.  7.  As  soon  as  the  plan,  program  and  draft  provided  for  in 
art.  i,  have  been  prepared  they  shall  be  submitted,  after  the 


ADMINISTRATION  IN  ENGLAND,  CANADA  AND  FRANCE      533 

advice  of  the  bureaus  of  hygiene,  or  failing  this,  of  the  sanitary 
commission  have  been  taken: 

ist.     To  the  Municipal  Council  for  its  consideration; 

2nd.  To  an  inquest,68  in  accordance  with  the  ordinance  of  August 
23,  1835;  and 

3rd.  To  the  consideration  of  the  commission  provided  for  in 
art.  4. 

The  Municipal  Council  is  then  required  to  give  its  final  decision. 

If  the  Municipal  Council  refuses  or  neglects  to  consider  the  plans, 
the  Prefect  shall  declare  the  council  to  be  in  default  and  give  it  not 
more  than  one  month  more,  after  which  he  shall  himself  examine  the 
plan. 

The  same  rule  shall  prevail  if  the  Municipal  Council  refuses  or 
neglects  to  give  its  final  decision. 

The  Prefect  shall  transmit  the  documents,  with  his  opinion,  giving 
his  reasons,  annexed,  to  the  Minister  of  the  Interior  who,  if  he 
thinks  it  desirable,  shall  consult  the  Superior  Council;  and  the  work 
to  be  done  under  the  plan  may  then  be  .declared  to  be  of  public  utility 
by  decree  of  the  Council  of  State. 

In  all  cases  concerning  a  settlement  provided  for  in  art.  2  of 
the  present  law,  the  declaration  of  public  utility  shall  be  made  by  a 
decision  of  the  Prefect,  upon  the  advice  of  the  commission  instituted 
by  art.  4,  except  in  so  far  as  concerns  groups  named  in  art.  I,  for 
which  in  all  cases  a  decree  of  the  Council  of  State  is  necessary. 

ART.  8.  Associations,  corporations  or  individuals  who  undertake 
the  erection  or  the  development  of  groups  of  houses  shall  deposit  at 
the  Mayor's  office  a  plan  of  subdivision,  including  the  connection  with 
the  public  highways,  and,  if  there  is  occasion  for  it,  with  the  water 
mains  of  drinking  water  and  the  sewers  of  the  commune. 

Within  twenty  days  of  such  deposit  the  plan  shall  be  submitted 
to  the  examination  of  the  bureau  of  hygiene,  or  in  default  of  such 
to  that  of  the  sanitary  commission  of  the  locality,  to  the  Municipal 
Council,  and  then  to  an  inquest58  in  the  manner  prescribed  by  the 
circular  of  the  Minister  of  the  Interior  of  August  20,  1825. 

One  month  after  a  notice,  duly  attested,  addressed  by  the  owner 
to  the  Mayor,  without  objection  raised,  the  Prefect  may  order  the 
inquest. 

The  plan  shall  then  be  submitted  to  the  commission  provided  for 
by  art.  4  above  and  approved,  if  necessary,  by  a  decision  of  the 
Prefect. 

The  decision  of  the  Prefect  shall  be  made  within  one  month  after 
the  inquest.  In  default  of  such  a  decision  within  that  time  the  plan 
is  deemed  to  have  been  approved.  Upon  the  approval  of  the  plan 
no  structure  shall  be  erected  without  the  issuance  by  the  Mayor  of  a 
permit  to  construct,  under  art.  n  of  the  law  of  February  15,  1902. 
88  Public  hearing. 


534  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

ART.  9.  When  the  planning  scheme  is  such  as  to  affect  several 
communes  of  the  department,  the  Prefect  may  require  a  study  of  the 
scheme  as  a  whole  on  behalf  of  the  municipalities  concerned,  and 
institute,  even  on  his  own  motion,  intercommunal  conferences  with 
a  view  to  the  formation  of  syndicates  of  communes,  in  conformity 
to  the  provisions  of  art.  116  and  169."  of  the  law  of  April  5,  1884. 

The  scheme  shall  be  investigated,  and  declared  of  public  utility  in 
the  manner  prescribed  by  arts.  6  and  7  of  the  present  law. 

If  the  plan  extends  beyond  the  limits  of  the  department  it  shall 
be  drawn  up  in  an  inter-departmental  conference,  in  accordance  with 
the  provisions  of  arts.  89,  90,  and  91  of  the  law  of  August  10,  1871, 
and  then  is  subject,  in  each  commune,  to  the  requirements  provided 
by  arts.  6  and  7  of  the  present  law. 

It  shall  be  declared  of  public  utility  by  a  law  which  shall  prescribe 
the  measures  necessary  for  its  application. 

ART.  10.  From  the  date  of  the  publication  of  the  act  declaring  a 
plan  to  be  of  public  utility  or  of  the  decision  of  the  Prefect  approving 
the  plan  with  relation  to  groups  of  houses,  as  provided  in  art.  8, 
the  owners  of  land  abutting  on  proposed  highways  and  squares  shall 
conform  to  the  rules  prescribed  by  the  legislation  with  regard  to 
building  and  street  lines,  and  shall  not  erect  any  new  structure  with- 
out having  first  obtained  a  building  permit  from  the  Mayor.  And 
thereafter  no  new  structures  shall  be  erected  abutting  on  proposed 
highways  or  squares,  except  in  accordance  with  the  lines  fixed. 

To  this  end  no  structure  shall  be  erected  without  a  building  per- 
mit from  the  Mayor. 

"The  reference  should  be  to  arts.  161-163,  and  not '169. 


CHAPTER  III. 

PLANNING  ADMINISTRATION  IN  THE  UNITED 

STATES 

Planning  Jurisdiction  in  the  United  States. — The  United 
States  is  a  federal  union.  It  consists  of  areas  within  states, 
ruled  both  by  the  national  and  by  state  governments  and  of 
areas  outside  the  limits  of  any  state,  controlled  entirely  by  the 
national  government  except  as  it  has  voluntarily  delegated 
power  to  local  governments.  Within  the  states  the  nation  gov- 
erns in  matters  of  national,  the  states  in  matters  of  state  and 
local,  concern.  The  boundaries  of  state  and  national  powers 
within  the  states  are  defined  by  the  Constitution  of  the  United 
States.  Outside  state  limits,  for  the  most  part,  the  nation  has 
granted  localities  the  right  of  local  self-government.  In  the 
District  of  Columbia,  however,  it  has  been  held  that  Congress 
may  delegate  only  municipal  power,  the  general  legislative 
power  remaining  necessarily  in  Congress.1 

Constitutional  Limitations  on  Planning  Power. — Juris- 
prudence regards  it  as  self-evident  that  all  power — power  to  act 
legally  on  any  subject  in  any  way — must  be  located  some- 
where; and  in  a  democracy  conceives  of  the  people,  in  so  far 
as  they  have  not  parted  with  it,  as  possessing  this  complete 
sovereignty.  In  creating  a  government  the  people  give  it  cer- 
tain powers  only,  forbidding  it  to  exercise  the  others,  or  limit- 
ing it  in  the  method  of  exercising  them.  Thus  no  government 
in  the  United  States  may  take  property  for  a  public  use  with- 
out compensation  or  deny  to  any  one  the  equal  protection  of 
the  law.  These  limitations  and  the  interpretations  put  on  them 
by  the  courts,  as  has  already  been  shown,  profoundly  influence 

1  Stoughtenburg  v.  Herrick,   129  U.  S.  141    (1889). 

535 


536  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

city  planning  in  this  country.    To  these  limitations  all  govern- 
ments in  the  United  States  are  subject.2 

Planning  Powers  of  the  United  States  Government. — 
In  addition  to  its  full  planning  powers  outside  state  limits,  the 
United  States  Government,  by  virtue  of  its  control  over  mat- 
ters of  national  importance,  has  ( I )  a  power  of  local  planning 
within  the  states  and  (2)  a  power  of  regional  planning  and 
(3)  of  investigation  and  advice,  in  all  parts  of  the  country. 

Local  Planning  Powers  of  the  United  States  Govern- 
ment Within  the  States. — Local  planning  is,  in  most  of  its 
phases,  a  state  rather  than  a  national  matter.  There  are,  how- 
ever, many  national  purposes  for  which  the  United  States  Gov- 
ernment may  take  and  develop  land  within  a  city  or  other  local 
area,  as  for  instance  for  a  post  office,  under  its  power  to  estab- 
lish post  roads,  or  for  a  fort  or  arsenal,  under  its  war  power. 
The  power  of  the  nation  in  so  doing  is  not  merely  the  power 
to  compel  the  state  to  act  for  it ;  it  may  directly  control  persons 
and  property  in  the  state  for  these  national  purposes,  and  in  its 
exercise  it  is  free  from  state  control.  Thus  the  United  States 
recently  built  a  custom  house  in  Boston — an  ornament  to  the 
city,  as  it  happened — higher  than  the  established  building 
limits;  and  New  York  City,  being  unable  to  take  by  eminent 
domain  the  right  to  construct  a  tunnel  for  a  new  subway  under 
the  post  office  on  City  Hall  Square,  was  compelled,  before  the 
United  States  would  grant  the  city  that  right,  to  give  the 
United  States  a  covenant  agreeing  in  some  respects  to  construct 
the  subway  at  this  point  in  accordance  with  the  wishes  of  the 
national  government. 

Planning  Power  Incident  to  the  National  Control  over 
Interstate  and  Foreign  Commerce. — Perhaps  the  only  power 
surrendered  by  the  states  to  the  nation  which  greatly  affects 
city  planning  is  that  over  interstate  and  foreign  commerce. 
Commerce  includes  transportation,  both  by  land  and  by  sea, 
and  the  instruments  of  transportation,  such  as  railroads,  ship- 

*  Except  possibly  the  island  dependencies,  to  some  of  the  minor  limita- 
tions ;  see  DeLima  v.  Bidwell,  182  U.  S.,  p.  I ;  Doolcy  v.  U.  S.  ib.,  p.  222 ; 
Downes  v.  Bidwell  ib.,  p.  244;  Huus  v.  N.  Y.,  etc.,  SS.  Co.  ib.,  p.  392; 
The  Diamond  Rings,  183  U.  S.  176  (all,  1901);  Hawaii  v.  Mankichi.  100 
U.  S.  197  (1903) :  Dorr  v.  U.  S.,  iQS  U.  S.  138  (1904). 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES     537 

ping  and  harbors.  Probably  the  nature  of  this  grant  by  the 
individual  states  to  the  United  States  of  the  power  to  regu- 
late commerce,  and  its  effect  on  city  planning,  may  best  be 
understood  by  considering  with  some  fullness  the  resulting 
power  of  the  United  States  and  the  individual  states  over  the 
development  of  state  harbors. 

National  and  State  Jurisdiction  over  State  Harbors. — 
The  use  of  water  for  navigation  is,  as  has  already  been  stated, 
dependent  upon  the  use  of  the  upland  fronting  on  it,  with  the 
right  appurtenant  to  this  upland  to  build  piers  and  wharves  to 
deep  water;  in  this  country  all  waters  being  in  law  navigable 
which  are  navigable  in  fact. 

In  the  Constitution  of  the  United  States  the  states  give 
the  United  States  Congress  the  power  "to  regulate  commerce 
with  foreign  nations  and  among  the  several  states  and  with  the 
Indian  tribes."  Since  commerce  includes  transportation,  power 
to  regulate  foreign  and  interstate  commerce  by  water  includes 
such  power  as  may  be  necessary  for  the  purpose  over  all  waters 
navigable  for  this  commerce.  These  waters  are  sometimes 
called  the  "navigable  waters  of  the  United  States"  and  include 
all  navigable  waters  in  the  United  States,  except  such  as  are 
entirely  within  a  state  with  no  navigable  connection,  natural 
or  artificial,  with  another  state.  This  jurisdiction  over  "the 
navigable  waters  of  the  United  States"  carries  with  it  such 
jurisdiction  as  may  be  necessary  over  the  land  under  water 
and  the  upland.  Subject  to  this  national  power  these  lands  and 
waters  remain  in  state  jurisdiction  and  ownership.  The  ex- 
clusive right  of  the  nation  in  international  bodies  of  water, 
with  the  land  under  it,  divided  as  just  indicated  between  na- 
tional and  state  governments,  extends,  according  to  interna- 
tional law,  for  a  marine  league  from  the  shore.  Outside  that 
limit  the  land  and  water  belong  to  all  nations  in  common. 

Thus  at  the  border  of  the  land  fronting  on  interstate  navi- 
gable waters  national  and  state  powers  meet  and  overlap.  Over 
this  land,  with  its  adjacent  waters,  the  state  may  regulate  its 
local  affairs;  over  these  waters,  with  their  adjacent  land,  the 
United  States  may  regulate  interstate  and  foreign  commerce 
and  its  instruments.  What  is  the  line  between  these  two  juris- 


538  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

dictions?  In  order  to  draw  it  we  must  very  briefly  consider 
the  methods  in  the  National  Constitution  of  the  grant  of  powers 
by  the  states  to  the  United  States. 

The  legislative  powers  of  the  Federal  Government,  granted 
to  it  by  the  states,  are  divided  into  two  classes — first,  those 
which  are  exclusively  in  the  national  government  and  may  in 
no  case  be  exercised  by  a  state;  and  secondly,  those  which,  if 
not  exercised  by  the  United  States,  may  be  employed  by  the 
states.  This  distinction  has  been  clearly  put  by  Willoughby 
in  his  work  on  the  Constitution  3  as  follows : 

"Some  of  the  powers  granted  by  the  Constitution  to  the  General 
Government  are  expressly  denied  to  the  States.  As  to  the  exclusive 
character  of  the  federal  jurisdiction  over  these  there  cannot  be,  of 
course,  any  question.  It  has,  however,  often  been  a  matter  of  dif- 
ficulty of  determination  whether  or  not  various  of  the  powers  given 
to  the  United  States,  but  not  expressly  made  exclusive  or  denied  to 
the  States,  are  so  exclusively  subject  to  federal  control  that  the  exer- 
cise of  them  by  the  States  is  under  no  circumstances  permissible. 
Shortly  stated,  the  principle  that  the  Supreme  Court  has  laid  down 
for  determining  the  question  in  each  particular  case  as  it  has  arisen 
has  been  the  following:  As  regards  generally  the  powers  granted  to 
the  National  Government  there  is  a  difference  between  those  which 
are  of  such  a  character  that  the  exercise  of  them  by  the  States  would 
be,  under  any  circumstances,  inconsistent  with  the  general  theory  or 
national  polity  of  the  Constitution,  and  those  not  of  such  a  character. 
As  regards  this  latter  class,  the  Supreme  Court  has  held  that  as  long 
as  Congress  does  not  see  fit  to  exercise  them,  the  States  may  do  so. 
Laws  thus  passed  by  the  States  are,  however,  of  course  subject  to 
suspension  at  any  time  by  the  enactment  by  Congress  of  laws  govern- 
ing the  same  subjects." 

National  and  State  Regulation  of  Pilotage,  Etc. — Un- 
der this  principle  the  commerce  clause  of  the  United  States 
Constitution  was  held  not  to  forbid  the  state  regulation  of  pilot- 
age in  interstate  harbors.  In  support  of  its  decision  to  this 
effect  the  Court  says :  4 

"The  power  to  regulate  commerce,  embraces  a  vast  field,  contain- 
ing not  only  many,  but  exceedingly  various  subjects,  quite  unlike  in 
their  nature;  some  imperatively  demanding  a  single  uniform  rule, 

•Vol.  i,  p.  73. 

'Coolcy  v.   I'o  rt   \\anl.ns   u   Howard   ( I'.  S.)   2OQ  at  p.  319  (1851). 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES     539 

operating  equally  on  the  commerce  of  the  United  States  in  every 
port;  and  some,  like  the  subject  now  in  question,  as  imperatively 
demanding  that  diversity,  which  alone  can  meet  the  local  necessities 
of  navigation.  .  .  . 

It  is  the  opinion  of  the  majority  of  the  court  that  the  mere  grant 
to  Congress  of  the  power  to  regulate  commerce,  did  not  deprive  the 
states  of  power  to  regulate  pilots.  .  .  ." 

The  doctrine  of  the  above  case  is  now  the  established  law. 
In  a  later  case  5  the  court  in  so  stating  adds  : 

"The  doctrine  now  firmly  established  is  that  when  the  subject 
upon  which  Congress  can  act  under  its  commercial  power  is  local  in 
its  nature  or  sphere  of  operation,  such  as  harbor  pilotage,  or  improve- 
ment of  harbors,  the  establishment  of  beacons  and  buoys  to  guide 
vessels  in  and  out  of  port,  the  construction  of  bridges  over  navigable 
rivers,  the  erection  of  wharves,  piers  and  docks,  and  the  like,  which 
can  be  properly  regulated  only  by  special  provisions  adapted  to  their 
localities,  the  State  can  act  until  Congress  interferes  and  supersedes 
its  authority;  but  when  the  subject  is  national  in  its  character,  and 
admits  and  requires  uniformity  of  regulation,  affecting  alike  all  the 
States,  such  as  transportation  between  the  States,  including  the 
importation  of  goods  from  one  State  to  another,  Congress  can  alone 
act  upon  it  and  provide  the  needed  regulations.  The  absence  of  any 
law  of  Congress  on  the  subject  is  equivalent  to  its  declaration  that 
commerce  in  that  matter  shall  be  free."8 

National  Regulation  of  Pier  and  Bulkhead  Lines,  Etc. 

— In  this  country  each  state  has  complete  and  exclusive  author- 
ity over  non-interstate  navigable  waters,  and  may  regulate  bulk 
head  and  pier  head  lines  and  the  construction  of  bridges  over 
such  waters  as  it  pleases ;  over  these  matters  in  interstate  navi- 
gable waters  the  jurisdiction  of  the  state,  as  we  have  seen, 
depends  upon  whether  or  not  the  United  States  has  assumed 
jurisdiction.  With  regard  to  these  matters  the  United  States 
IMS  seen  fit  to  take  jurisdiction  by  passing  regulations  with 
regard  to  them.  These  regulations  prohibit  the  creation  of  any 
obstruction,  not  affirmatively  authorized  by  Congress,  to  the 
navigable  capacity  of  any  of  the  waters  of  the  United  States, 
thus  making  it  unlawful  to  build  any  wharf,  pier,  bulkhead, 
etc.,  in  any  port,  navigable  river,  or  other  waters  of  the  United 

"Bowman  v.  R.  Co.,  125  U.  S.  465  (1888). 

8  See  also  Covington,  etc.,  Bridge  Co.  v.  Kentucky,  154  U.  S.  204  (1804). 


540  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

States,  outside  harbor  lines  established  by  the  United  States; 
or,  when  no  such  lines  have  been  established,  except  in  accord- 
ance with  plans  authorized  by  the  Secretary  of  War.  Where 
it  is  made  manifest  to  the  War  Department  that  harbor  lines 
should  be  fixed,  the  Secretary  of  War  will  cause  them  to  be 
established.  To  the  construction  of  any  bridge  or  other  struc- 
ture over  navigable  waters  of  the  United  States  Congress  must 
consent  and  the  plans  be  approved  by  the  Secretary  of  War; 
but  where  the  navigable  part  of  such  waters  is  entirely  within 
a  state  the  consent  of  the  Secretary  of  War  alone  is  sufficient. 

State  Regulation  of  Pier  and  Bulkhead  Lines,  Etc. — It 
has  been  held  that  this  legislation  does  not  indicate  the  pur- 
pose of  Congress  entirely  to  exclude  state  jurisdiction  in  these 
matters,  but  that  to  the  erection  of  docks  and  piers  within  a 
state  the  consent  of  the  state  also  is  necessary.  In  the  exercise 
of  this  power,  states,  and  cities  by  their  authority,  may  and 
often  do  fix  bulkhead  and  pier  head  lines  inside  the  federal 
lines,  but  can  not,  of  course,  authorize  any  structure  beyond 
them. 

Unexercised  Powers  of  National  Government  over 
Harbors. — It  is  clear  from  the  decisions  cited  and  others  that 
might  be  referred  to  that  the  United  States  in  its  legislation  as 
to  bridges,  bulkhead  and  pier  head  lines,  etc.,  has  exercised 
only  a  part  of  its  power  of  harbor  regulation.  If  it  so  chose, 
it  could  fix  the  location  of  docks  and  similar  structures  or  even 
build  and  control  them.  It  has  never  done  so  and  probably 
never  will.7  Its  purpose  at  present  is  simply  in  some  respects  to 
condition  the  planning  of  harbors  by  state  authority,  not  to 
plan  them  itself. 

National  Jurisdiction  over  Transportation  by  Land. — 
What  has  just  been  said  with  regard  to  national  and  state  ju- 
risdiction over  transport  by  water  applies  also  to  such  jurisdic- 
tion over  transport  by  land.  Undoubtedly  the  United  States 
might  not  only  regulate  the  interstate  railroads  and  charter  cor- 
porations to  construct  them  but  might  itself  build  and  operate 
them  with  their  terminals  and  warehouses.  This,  too,  it  shows 

*  It  has,  however,  authorized  corporations  to  build  bridges  over  navi- 
gable water. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES     541 

no  signs  of  doing.  But  even  if  the  United  States  exercised  this 
power  over  the  instruments  of  commerce  both  by  sea  and  by 
land,  it  would  still  remain  true  that  the  planning  of  cities,  in 
harmony,  so  far  as  possible,  with  these  national  factors  outside 
state  control,  would  be  the  peculiar  task  of  the  state  or  of  the 
local  community  to  whom  the  state  has  entrusted  it. 

Regional  Planning  by  Central  Government. — Like  all 
governments,  the  government  of  the  United  States  has  and 
exercises  the  power  to  regulate  the  use  of  and  conserve  land 
and  other  resources,  within  or  without  state  boundaries,  which 
belong  to  the  nation.  Our  national  parks,  so  controlled,  are 
unrivalled  in  the  world.  At  one  time  the  federal  government 
owned  vast  tracts  of  agricultural  land,  some  of  which  still 
belongs  to  it.  The  United  States,  in  aid  of  interstate  commerce, 
has  also  built  roads  and  made  other  internal  improvements  in 
all  parts  of  the  country.  Proper  management  and  control  of 
these  matters  involves  regional  planning.  The  small  amount 
of  direction  which  the  federal  government  has  given  these  mat- 
ters is  all  the  regional  planning  which  the  federal  government 
has  done,  but  by  no  means  all  that  it  might  do.  By  its  power 
to  construct  and  regulate  the  construction  of  the  instruments 
of  land  and  water  transportation  in  interstate  commerce  already 
referred  to,  and  especially  by  its  power  to  regulate  and  fix 
passenger  and  freight  rates  in  such  commerce,  the  federal  gov- 
ernment could  in  large  measure  determine  the  location  and 
growth  of  cities  and  lesser  communities  and  the  distribution 
of  population  and  industry  with  relation  to  agricultural  and 
other  resources  in  every  part  of  the  United  States.  The  power 
to  fix  rates  is  constantly  being  used  by  the  central  government 
in  ways  that  influence  the  distribution  of  population  and  busi- 
ness. For  instance,  every  time  the  national  government  fixes, 
modifies  or  refuses  to  disturb  the  differential  of  freight  rates 
between  different  cities,  it  exerts  a  mighty  influence  of  this  sort. 
These  powers  have  never  been  used  as  a  means  of  carrying  out 
any  regional  plan  of  the  United  States  nor  has  there  even 
been  any  attempt  to  make  such  a  plan.  The  advantages  which 
could  be  gained  by  the  making  and  enforcement  of  a  proper 
plan  of  this  sort,  the  risks  in  disturbing  values  on  such  a  scale 


542  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

and  the  difficulty  in  obtaining  agreement  to  any  specific  pro- 
posals to  this  end  would  all  be  enormous.  Under  these  circum- 
stances the  wise  course  to  pursue  would  be  to  prepare  a  plan 
which  should  be  purely  advisory- — a  most  difficult  task  quite 
aside  from  its  magnitude — and  present  it  from  time  to  time 
to  the  state  and  local  authorities  as  occasion  arose  without  at- 
tempting to  decide  whether  anything  further  could  ever  be  done, 
much  less  how  it  should  be  undertaken. 

Investigation  and  Advice. — The  United  States,  under  the 
Constitution,  has  no  general  planning  jurisdiction.  Neverthe- 
less it  seems  clear  that  it  may  investigate  and  experiment  in 
planning  matters,  disseminate  this  information  throughout  the 
country  and  give  its  advice  to  governments  and  individuals 
seeking  it.  The  power  of  investigation,  experimentation  and 
advice,  inherent  in  other  governments,  has  always  been  assumed 
to  be  inherent  in  ours.  For  instance  the  power  of  the  national 
government  to  render  the  valuable  assistance  of  this  nature  to 
agriculture  throughout  the  country  has  never  been  questioned. 
The  Dominion  government  of  Canada,  without  any  more 
authority  in  planning  than  our  federal  government,  is  exer- 
cising this  power  most  effectively  through  its  Commission  of 
Conservation.8  Largely  on  account  of  its  influence,  six  of  the 
provinces  have  passed  town  planning  laws  modeled  on  the 
English  law,  many  of  them  embodying  improvements  suggested 
in  England  before  they  were  enacted  in  the  mother  country. 
This  power  is  also  possessed  by  our  states,  as  it  undoubtedly  is 
by  the  Canadian  provinces,  and  should  be  used  by  the  nation  to 
supplement  the  states  and  their  subdivisions  in  this  branch  of 
the  work  in  ways  in  which  the  nation  can  act  more  effectively.9 

"See,  however,  p.  511,  note  28, 

*A  proposal  for  the  creation  of  a  planning  department  of  our  national 
government,  which  had  the  support  of  many  associations  and  individuals 
interested  in  housing  and  city  planning,  was  embodied  in  a  "Hill  to  create 
a  Bureau  of  Housing  and  Living  Conditions  in  the  Department  of  Labor," 
introduced  in  the  National  House  of  Kei>re>entative*  <^.th  Cong.,  ist 
scss.,  July  8,  1919,  No.  7014)  by  Congressman  Tinkham  of  Massachusetts, 
which  failed  of  passage.  That  town  planning  was  intended  to  lie  in- 
cluded in  its  scope  is  indicated  by  the  speech  of  its  introducer  (Cong. 
Record,  Vol.  58,  p.  8913,  July  12,  1919).  Obviously  planning  is  a  neces- 
sary part  of  any  method  of  permanently  improving  housing  and  living 
conditions.  The  Republican  national  platform  also  has  come  out  in  favor 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      543 

Planning  Jurisdiction  of  the  States. — While  the  United 
States,  as  has  already  been  pointed  out,  has  powers  which  it 
could  use  to  influence  the  planning  of  the  territory  within 
state  limits,  it  never  has  used  these  powers  to  that  end.  At 
times  the  state  authorities  must  recognize  the  jurisdiction  of 
the  central  government.  Thus  if  a  city  wishes  to  include  in  its 
plan  the  bridging  of  a  navigable  stream  or  the  extension  far- 
ther into  navigable  waters  of  the  bulkhead  or  pier  head  line, 
federal  permission  must  be  obtained.  In  practice  this  permis- 
sion is  given  or  withheld  solely  with  a  view  to  its  direct  and 
obvious  effect  on  navigation  and  never  for  the  influence  it 
would  have  on  the  city  plan.  Practically,  therefore,  the  state 
may  be  said  to  have  full  planning  power  and  jurisdiction  within 
the  state  subject  to  such  limitations  as  the  United  States  and 
the  state  constitutions  place  on  governmental  action ;  which  lim- 
itations, in  so  far  as  they  are  in  the  state  constitution,  the  people 
of  the  state  may  vary  or  remove. 

The  plenary  authority  of  the  state  over  planning  may  be  ex- 
ercised directly  or  delegated  to  local  governmental  agencies. 
The  matters  to  be  so  regulated  may  be  classified  into  ( I )  mat- 
ters of  more  general  interest,  with  which  the  state  would  natur- 
ally deal  directly,  (2)  matters  of  local  interest  which,  so  far  as 
possible,  the  state  should  regulate  through  local  authorities,  (3) 
supervision  of  local  planning,  which  is  necessarily  a  state  matter, 
(4)  investigation,  experimentation  and  advice  in  planning  mat- 
ters, which  also  is  properly  but  not  exclusively  a  state  function. 

State  Planning. — What  may  be  characterized  as  the  actual 
planning — as  distinguished  from  the  supervision  of  planning 
and  the  collection  and  dissemination  of  information  with  regard 
to  planning — which  it  is  the  province  of  the  state  to  under- 
take and  which  states  do  in  fact  undertake  in  this  country,  may 
be  in  the  nature  either  of  city  planning  in  the  narrower  signifi- 
cation of  that  phrase  or  of  regional  planning. 

The  Planning  of  the  Capital  City. — The  city  in  which  the 

of  the  establishment  of  a  housing  and  planning  bureau  with  advisory 
power  in  the  United  States  Government;  and,  accordingly,  there  has  been 
created,  in  the  Department  of  Commerce,  a  Division  of  Building  and 
Housing,  in  which  two  advisory  committees,  on  Building  Codes  and  on 
Zoning,  have  been  appointed. 


544  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

entire  state  is  interested  is  the  state  capital.  The  capital  of  the 
United  States  is  exclusively  under  the  jurisdiction  of  the  United 
States  Government.  In  the  individual  states  the  capital  city  is 
sometimes  wholly  self -governed,  sometimes  wholly  or  partly 
under  direct  state  control.  In  one  state  the  concern  of  the 
state  in  the  planning  of  the  state  capital  is  recognized  in  the 
appointment  of  a  planning  authority,  purely  advisory,  which 
cooperates  with  the  planning  authorities  of  the  city  and  of 
neighboring  communities.10 

State  Regional  Planning. — The  resources  of  the  state,  of 
forest,  water  and  power,  are  the  patrimony  of  its  people.  In 
many  states  there  are  state  commissions  whose  duty  it  is  to  con- 
serve its  resources  and  in  some  cases  to  apportion  the  use  of 
them  among  the  local  governments  and  to  corporations  and  in- 
dividuals for  the  common  good.  Such  features  as  parks  are 
often  of  such  size  or  so  distributed  as  to  serve  more  than  one 
community  and  should  be  paid  for  and  planned  in  the  interest 
of  the  larger  public  they  serve.  In  some  states  these  parks  are 
managed  by  a  state  commission,  in  others  they  are  under  county 
control.  Obviously  a  state  system  of  main  highways  is  neces- 
sary. Sometimes,  however,  these  highways  are  planned  by  the 
county.  Especially  important  in  the  development  of  the  state 
as  a  whole  and  of  the  communities  within  it  are  its  railways, 
the  location  and  powers  of  which  are  for  the  most  part  fixed 
by  the  state.  All  these  possibilities  of  planned  regulation  and 
control  are  still  largely  neglected,  and  it  is  for  the  purpose  of 
pointing  out  this  possibility  that  they  are  here  mentioned. 

Planning  and  Home  Rule. — There  is  a  growing  belief  in 
this  country  in  the  righteousness  and  expediency  of  a  full 
measure  of  local  self-government  in  local  affairs.  General  mat- 
ters must  be  settled  by  general  rules  but  the  applications  of  gen- 
eral principles  are  always  special  and  should  fit  the  special  cir- 
cumstances of  the  case.  The  law  that  people  do  not  want  does 
not  work.  The  man  on  the  spot  thinks  he  knows  what  he 
wants;  the  man  at  a  distance  may  advise  and  persuade,  but 
must  be  very  careful  in  his  commands.  This  theory,  founded 
on  observation  and  common  sense,  has  in  a  few  states  found  its 
"California.  For  the  law  in  full,  see  p.  603. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES     545 

way  into  the  state  constitution,  which  guarantees  a  measure  of 
home  rule  to  certain  of  its  local  governments;  but  in  most 
states  it  is  still  a  precept  which  the  legislature  sometimes  heeds 
and  oftener  disregards.  The  principle  of  home  rule  is  espe- 
cially applicable  to  city  planning.  The  plan  must  be  framed  to 
fit  the  locality  and,  once  framed,  must  be  kept  abreast  of  the 
local  needs  and  enforced.  The  state  may  lay  down  general 
principles,  establish  minimum  requirements,  supervise,  harmon- 
ize and  direct,  but  should,  so  far  as  possible,  leave  detailed 
planning  to  local  authorities. 

Local  Planning. — Except  when  prevented  by  home  rule 
provisions,  made  a  part  of  the  state  constitution,  the  states  in 
this  country  have  the  legal  right  to  confer  planning  powers  on 
such  local  governments  as  they  see  fit,  to  the  extent  they  think 
proper;  and,  having  conferred  these  powers,  they  may  add  to 
or  limit  them  in  the  same  way.  In  so  doing  they  may  rely  upon 
existing  local  governments  or  create  new  ones  for  the  purpose, 
these  governments  having  no  vested  rights  in  the  power  but 
only,  in  certain  cases,  to  property  acquired  under  it.  It  is  quite 
usual  to  create  local  governments  for  special  purposes,  such  as 
fire  protection,  the  collection  and  disbursement  of  taxes  for  spe- 
cial improvements,  the  administration  of  parks,  etc.  These 
governments  may  be  coterminous  with  other  local  governments 
or  include  outside  territory  as  well.  The  overlapping  sometimes 
— but  by  no  means  always — makes  unnecessary  complication 
and  expense;  but  this  is  an  objection  to  the  expediency,  not  the 
legality,  of  the  new  government.  In  this  way  local  public  cor- 
porations or  quasi-corporations  of  unquestionable  validity  may 
be  created  by  the  state  to  administer  planning  as  well  as  perform 
other  functions. 

Metropolitan  Planning. — Metropolitan  planning  has  al- 
ready been  defined  as  the  planning  as  a  unit  of  a  city  or  group 
of  cities  and  smaller  localities  and  the  outside  territory  within 
its  sphere  of  more  immediate  influence ;  and  the  fact  has  been 
indicated  that  it  is  the  division  of  such  a  district  by  jurisdic- 
tional  lines  that  occasions  administrative  difficulties  in  such  uni- 
fied planning.  It  is  these  difficulties  which  will  now  be  taken 
up. 


546  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  statute  which  creates  a  city  necessarily  assigns  to  it 
definite  limits.  It  is  a  common  thing  for  the  population  of  the 
city,  in  its  growth,  to  overflow  into  the  territory  outside  the 
city's  legal  limits.  The  difficulties  which  this  occasions  may  be 
obviated  by  a  seasonable  extension  of  these  limits,  but  this  is 
often  prevented  by  those  living  in  this  outside  territory  who  en- 
joy the  advantages  of  the  city  without  paying  its  taxes.  Where 
the  city  is  enlarged  in  anticipation  of  growth  and  the  land  to 
be  taken  in  is  still  agricultural  in  character,  the  opposition  of 
the  owners  of  this  land  may  be  met  by  taxing  it  at  a  lower  rate 
as  long  as  it  remains  agricultural,  on  the  ground  that  it  does 
not  get  the  same  advantage  from  city  government  that  other 
land  does;  an  agreement  to  that  effect  being  made  with  the 
owners  of  the  agricultural  land  to  obviate  the  danger  to  them 
of  the  repeal  of  this  provision  through  the  influence  of  other 
land  owners.  In  such  cases  the  land  taxed  at  a  lower  rate  does 
not  need,  and  should  not  receive,  the  improvements  and  other 
municipal  services  which  the  more  highly  taxed  land  obtains.11 
Extension  of  City's  Planning  Jurisdiction  Beyond  Its 
Limits. — If  the  legal  limits  of  the  city  cannot  well  be  extended 
to  include  the  neighboring  unimproved  land,  unified  planning 
may  to  some  extent  be  secured  by  giving  the  city  the  power  to 
pass  on  the  platting  of  land  within  a  given  distance  of  its  outer 
limits.  This  is  done  by  making  the  record  of  deeds  of  such 
land  dependent  upon  the  approval  of  the  platting  by  the  plan- 
ning commission  or  some  6ther  board  or  official  of  the  city. 
The  usual  distance  beyond  its  limits  to  which  the  city's  power 
in  this  respect  is  allowed  to  extend  is  three  miles,  or  if  there 
is  another  city  within  less  than  six  miles  at  any  point,  half  the 
distance  to  the  line  of  that  other  city.  The  merits  and  defects 
of  this  method  of  controlling  the  planning  of  land,  in  so  far 
as  they  apply  to  land  irrespective  of  its  location  within,  or 
without,  the  city,  have  already  been  pointed  out  and  need  not 
be  repeated.  The  reader  will  remember  how  incomplete  that 
control  was  found  to  be.  It  remains  to  point  out  that  to  give 
one  local  government  control  over  territory  and  people  within 
the  limits  of  another  is  both  unjust  and  calculated  to  confuse 
u  See  p.  4 1 . 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES     547 

government  in  both  units.  Often  the  outside  territory  sub- 
jected to  this  control  is  not  organized  as  a  village,  town,  or  simi- 
lar local  government;  but  it  is  always  within  the  confines  of  a 
larger  local  unit — such  as  the  county — which  in  many  cases 
embraces  both  the  city  and  the  adjacent  territory,  and  in  the 
government  of  which  the  city,  with  its  much  larger  population, 
has  the  greatly  preponderating  power.  It  is  to  be  regretted 
that,  as  a  rule,  county  government  is  not  such  in  this  country 
that  planning  power  can  wisely — as  yet  at  least — be  given  it. 

Creation  of  Metropolitan  Planning  Authority. — Where 
the  adjacent  territory  is  organized  into  cities  and  villages,  a 
method  free  from  the  defects  inherent  in  giving  the  city  juris- 
diction outside  its  limits,  and  by  which  also  that  complete  unity 
of  planning  which  extraterritorial  control  attains  only  in  small 
part  can  be  secured,  is  the  creation  of  a  local  government  cov- 
ering the  entire  district  which  is  to  be  planned,  whose  sole 
function  shall  be  planning,  leaving  with  the  regular  local  gov- 
ernments their  jurisdiction  over  all  other  matters. 

The  Pennsylvania  Law. — A  planning  authority  of  the 
sort  described  was  created  in  Pennsylvania.  In  1913  an  act 
was  introduced  in  her  legislature  providing  for  the  appointment 
of  a  suburban  metropolitan  planning  commission,  to  include 
Philadelphia  and  suburban  territory  within  twenty-five  miles  of 
its  limits.  As  passed,  however,  the  act  applied  to  the  suburban 
territory  only.  It  provided  that  the  governor  of  the  state  should 
appoint  a  planning  commission  for  the  district,  to  consist  of 
fifteen  members,  of  whom  twelve  should  be  residents  of  the  dis- 
trict and  three  residents  of  Philadelphia.  The  jurisdiction  of 
the  commission  covered  the  planning  of  highways,  water  sup- 
ply, sewerage  systems,  open  spaces,  etc.,  in  so  far  as  the  district 
as  a  whole,  or  more  than  one  member  of  it,  was  affected.  The 
commission  was  of  right  entitled  to  obtain  information  from 
all  these  municipalities  and  to  be  heard  by  them  on  all  these 
matters.  Its  power  was  advisory.  Unfortunately  in  1915  the 
act  was  repealed. 

The  Massachusetts  Proposal. — In  Massachusetts  a  fuller 
solution  of  this  problem  was  proposed.  Massachusetts  has  long 
had  a  metropolitan  district  embracing  Boston  and  thirty-seven 


548  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

of  its  neighboring  cities  and  towns.  For  this  district  she  has 
at  different  times  appointed  a  number  of  temporary  commis- 
sions for  a  variety  of  purposes,  and  permanent  commissions  for 
the  regulation,  throughout  the  district,  of  water  supply,  of  sew- 
erage, of  parks  and  of  fire  prevention.  The  Commissioners 
are  appointed  by  the  state.  The  cities  and  towns  which  con- 
stitute the  district  include  such  a  considerable  part  of  the  pop- 
ulation of  the  state — 43  3/10  per  cent  in  1910 — that  the  ap- 
pointment of  state  commissioners  is  less  an  infringement  of 
the  principle  of  home  rule  than  it  would  be  in  many  other  cases. 
Certainly,  however,  such  problems  may  often  be  solved  without 
violating  home  rule,  as,  for  instance,  by  a  state  law  providing 
for  a  commission  to  control  a  harbor  in  two  local  jurisdictions 
within  the  state,  its  members  to  be  appointed  by  each  jurisdic- 
tion in  the  proportion  that  its  population  bears  to  that  of  the 
other  jurisdiction. 

No  commission  has  power  to  regulate  and  unify  street  con- 
struction in  the  metropolitan  district  of  Boston  and  its  neigh- 
boring towns  and  cities,  although  both  the  appointment  of  a 
separate  commission  for  that  purpose  and  the  consolidation  of 
the  existing  commissions,  with  the  power  to  control  street  con- 
struction added,  has  been  suggested.  The  latest  suggestion 
was  in  1912,  at  which  time  a  draft  of  an  act,  never  passed,  was 
introduced  into  the  Massachusetts  legislature.12  The  proposed 
act  provides  not  only  for  the  planning  but  for  the  construction 
of  highways  and  other  improvements  and  the  equitable  dis- 
tribution of  the  expense,  and  is  well  worth  careful  study. 

Interstate  Metropolitan  Planning. — A  number  of  large 
cities  in  this  country  are  located  at  or  near  the  state  boundary. 
When  the  boundary  line  is  a  river  with  a  harbor  at  its  mouth, 
as  in  the  case  of  New  York  City,  the  division  line  is  more  of  a 
close  connection  between  the  two  states  than  a  division.  Often 
the  city  has  grown  to  such  an  extent  that  the  metropolitan  city 
is  in  three  states  and  commuters  come  from  all  three  of  them 
daily  to  business.  The  need  of  planning  such  an  area  as  a  unit 

"An  investigation  of  the  desirability  of  such  a  commission  was  or- 
dered by  Massachu  ;unl  Resolves,  1911,  ch.  84.  The  report, 
with  the  draft  act,  reprinted  in  full  on  p.  589  of  this  work,  is  House  No. 
1615,  of  1912. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      549 

is  great  and  the  difficulties  are  much  increased  by  the  jurisdic- 
tional  lines,  fixed  by  the  United  States  Constitution. 

One  method  of  overcoming  these  difficulties  is  to  appoint 
a  citizen  planning  commission,  with  a  membership  in  all  the 
different  jurisdictions.  The  members  of  such  a  commission, 
when  once  they  have  agreed  upon  a  plan,  can  do  much  in  their 
own  localities  to  induce  common  action  along  the  lines  of  the 
plan. 

Another  method  of  attaining,  to  a  certain  extent,  unity  of 
action,  is  the  appointment  by  each  state  of  an  official  commis- 
sion, the  commissions,  so  far  as  possible,  acting  as  one  commis- 
sion. 

None  of  these  devices  are  thoroughly  satisfactory.  What 
is  needed  is  a  single  authority,  acting  permanently  for  the  entire 
metropolitan  district.  Such  an  authority  the  states  of  New 
York  and  New  Jersey  have  created  for  the  planning  of  New 
York  harbor  and  the  territory  adjacent  to  it,  constituting  a  met- 
ropolitan district. 

The  Metropolitan  district  of  New  York,  includes,  in  addi- 
tion to  New  York  City,  fifteen  cities,  some  of  them  of  large 
size,  forty-one  boroughs,  two  villages,  seventeen  towns,  and 
seventeen  townships.  Of  these  local  governments  eleven,  with 
by  far  the  greater  population,  are  in  the  State  of  New  York, 
and  the  rest  in  the  State  of  New  Jersey.  The  difficulties  of 
developing  a  world  harbor,  in  need  of  the  most  modern  and 
efficient  equipment,  so  controlled,  are  apparent.  The  great  har- 
bors of  other  countries  all  have  a  port  authority,  with  juris- 
diction and  funds  commensurate  with  the  task  they  must  per- 
form. 

Faced  with  the  task  of  the  adequate  development  of  the  har- 
bor of  New  York,  the  States  of  New  York  and  New  Jersey  in 
1917  each  appointed  a  commission,  to  act  jointly  with  the  com- 
mission of  the  other  state.13  This  commission,  regarding  the 
creation  of  a  single  port  authority  for  the  entire  district  as  in- 
dispensable to  the  performance  of  the  task,  proposed,  and  has 

"Laws,  New  York,  1917,  ch.  426;  New  Jersey,  1917,  ch.  130.  In  addi- 
tion to  the  reports  of  this  Commission,  see  the  brief  of  its  Counsel,  Julius 
Henry  Cohen,  in  defense  of  the  legality  of  its  proposals,  in  the  Cornell 
Law  Quarterly  for  May,  1920. 


550  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

now  obtained,  legislation  from  the  two  states  for  the  adoption 
of  a  method  of  overcoming  the  jurisdictional  difficulty.  In  the 
year  1834,  the  States  of  New  York  and  New  Jersey  entered 
into  a  compact  settling  the  disputed  question  of  jurisdiction 
over  the  waters  between  the  two  states.  This  compact  was  rati- 
fied by  the  United  States  Government  and  subsequently  sus- 
tained by  the  courts.  This  compact  has  now  been  amended  by 
adding  to  it  provisions  for  the  creation  of  the  necessary  port 
authority.14  The  rights  of  the  two  states  and  of  the  local  com- 
munities concerned  have  been  carefully  safeguarded.  There 
are  a  number  of  cities  in  this  country  which  face  problems  much 
like  those  that  confront  New  York;  and  the  solution  found  by 
New  York  cannot  fail  to  be  of  aid  also  to  them.15 

State  Supervision  of  Local  Planning. — Home  rule  does 
not  preclude  the  state  from  legislating  in  matters  of  general 
importance,  binding  local  governments  and  individuals  in  the 
conduct  of  their  affairs;  indeed  all  states  regard  it  as  their 
duty  to  enact  and  enforce  such  laws.  Nor  does  home  rule  in 
principle  prevent  the  state  authorities  from  supervising  localities 
in  dealing  with  purely  local  matters.  In  this  country  the  state 
exercises  little  of  such  control ; 18  which  however  is  usually  a 

"Laws,  New  York,  1921,  chs.  154,  203;  New  Jersey,  1921,  chs.  151 
and  152.  For  the  text  of  the  compact  see  p.  597.  The  compact  was  rati- 
fied by  the  United  States  by  resolution  of  Congress  approved  by  the 
President,  August  21,  1921 ;  and  in  1922  the  legislatures  of  New  Jersey 
(ch.  9)  and  New  York  (ch.  43)  approved  the  plan  of  development  sub- 
mitted by  the  port  of  New  York  authority  and  authorized  and  directed 
it  to  proceed  with  the  development  of  the  port  in  accordance  with  that 
plan.  The  acts  contain  an  outline  of  the  plan. 

"In  this  connection  a  law  of  the  State  of  New  Jersey  passed  in  1912 
(ch.  177)  requiring  all  communities  in  that  state  situated  on  New  York 
harbor  to  report  contemplated  improvements  of  lands  under  water  to 
the  New  York-New  Jersey  commission  already  referred  to,  is  not  with- 
out interest. 

**  STATE  SUPERVISION  OF  PLANNING  OF  HARBORS. 

A  New  Jersey  statute  (1914,  p.  205,  ch.  123)  creating  a  Harbor  Com- 
mission, provides  a  method  by  which  the  state  may  supervise  the  plan- 
ning of  harbor  facilities  and  land  under  water  to  any  desired  extent. 
Land  under  water  in  New  Jersey  is  owned  by  the  state  and  is  granted 
by  the  state  (acting  through  the  State  Riparian  Commission,  now  suc- 
ceeded by  the  Board  of  Commerce  and  Navigation)  to  individuals,  and 
private  and  public  corporations,  in  its  discretion.  This  gives  the  state 
undoubted  power  to  make  and  enforce  plans. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      55' 

part  of  the  governmental  system  of  foreign  countries,  even  in 

Canada,  where  the  customs  and  traditions  are  so  like  our  own. 

In   foreign  countries   state  supervision   has   proved   most 

useful  in  certain  phases  of  local  planning,  especially  the  neces- 

The   statute  after  providing    (sees.   1-2)    for  the  appointment  of   the 
commission,  its  secretary,  etc.,  proceeds  as  follows : 

3.  It  shall  be  the  duty  of  the  commission  to  investigate  and  report 
annually  to  the  Legislature  the  condition  of  the  water  front  or  harbor 
facilities,  and  any  other  matter  incident  to  the  movement  of  commerce 
upon  all  navigable  rivers  and  waters  in  this  State,  or  bounding  thereon, 
and  to  recommend  to  the  Legislature,  and  to  the  various   municipalities 
of  this  State  interested  therein,  such  measures  as  may,  in  the  judgment 
of   the   commission,    be   necessary    or   advisable    for   the   preservation   of 
proper  navigation  or  its  improvement,  or  the  improvement  of  the  move- 
ment of  commerce  upon  such  waters,  and,  concurrently  with  the  Riparian 
Commission  of  this  State,  or  any  board  or  body  which  may  succeed  to  the 
powers    of    said    commission,   the   commission    created   by  this   act   shall 
have  power,  by  appropriate  action  in  any  court,  to  prevent  encroachment 
or  trespass  upon  the  water  front  of  any  of  the  navigable  waters  of  this 
State,  or  bounding  thereon,  or  upon  the  riparian  lands  of  this  State,  and 
to  compel  the  removal  of  any  such  encroachment  or  trespass,  and  to  re- 
strain,  prevent   and    remove   any   construction,   erection   or   accretion   in- 
jurious to  the  flow  of  any  such  waters  which  may  be  detrimental  to  the 
proper    navigation    thereof,    and    the    maintenance    and    improvement    of 
commerce  thereon. 

4.  All  plans  for  the  development  of  any  water  front  upon  any  navt* 
gable  water  or  stream  of  this  State,  or  bounding  thereon,  which  is  con- 
templated by  any  person,  corporation  or  municipality,   in  the  nature  of 
individual   improvement  or  development,  or  as  a  part  of  a  general  plan 
which  involves  the  construction,  change,  alteration  or  modification  of  a 
dock»  wharf,  pier,  bulkhead,  bridge,  pipe  line,  cable,  or  any  other  similar 
or  dissimilar  water  front  development,   to  be  undertaken   subsequent  to 
the  passage  of  this  act,  shall  first  be  submitted  to  the  said  commission, 
and   no   such   development   or   improvement   enumerated   within  the   pro- 
visions of  this  section,  or  included  within  a  proper  interpretation  thereof, 
shall  be  commenced  or  executed  without  the  approval  of  this  commission 
first  had  and  received,  or  as  hereinafter  provided.     Upon  the  presentation 
of  plans  for  any  such  improvement,  the  commission  shall  forthwith  con- 
sider the   same,   and   shall,   if  necessary  or   desirable,   hold   public  meet- 
ings   for    the    consideration    thereof,    under    such    rules    and    regulations 
as     the     commission      may     establish.      Before     any     plans     are     ap- 
proved or  disapproved,  the  commission  shall  have  power,  except  as  here- 
inafter provided,  to  direct  such  changes  or  alterations  in  the  plans  sub- 
mitted as  it  may  deem  necessary  or  advisable  as  a  condition  precedent 
to  approval.     Where  such  water  front  is  under  the  control  of  any  local 
board,   commission   or   other   governing  body,   created  by  an   act  of  the 
Legislature,  now  or  hereafter,  having  power  to  improve  or  develop  the 
water  front  or  exercising  such  authority  that  a  permit  or  license  must 
be  granted  by  it  before  any  improvement  or  development  may  be  com- 
menced, plans  proposed  by  it  or  submitted  to  it  shall  be  filed  with  the 
commission  created  under  this  act.     The  said  commission  created  under 
this  act,  may,  within  ten  days  after  the  receipt  by  it  of  plans  as  above 
provided,  file  notice  of  objections  to  the  carrying  out  of  such  improve- 
ment or  development,  or  to  the  granting  of  such  permit  or  license  by 


552  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

sary  harmonizing  of  the  plans  of  neighboring  local  govern- 
ments. No  other  method  has  been  discovered  of  accomplish- 
ing this  result  with  so  little  interference  with  home  rule.  Some 
supervision  by  the  state  of  the  more  strictly  local  phases  of 
planning  has  also  been  found  profitable. 

State  Research  and  Advice. — The  making  of  experi- 
ments, the  collection  of  information,  and  the  giving  of  advice 
to  local  governments  in  planning,  as  in  other  matters  of  suffi- 
cient importance  and  difficulty,  is  properly  a  state  function, 
although  legally  it  may,  and  practically  it  should,  be  undertaken 
also  by  the  nation  on  the  one  hand  and  by  the  local  community 
on  the  other,  each  contributing  something  to  the  common  fund 

the  local  board,  commission  or  other  governing  body,  and  the  filing  of 
such  notice  shall  act  as  a  stay  in  the  carrying  out  of  such  plans  or  in 
the  granting  of  such  permit  or  license  until  a  public  hearing  shall  have 
been  held  by  the  local  board,  commission  or  other  governing  body,  sitting 
jointly  with  the  commission  created  under  this  act.  At  such  public  hear- 
ing the  commission  created  under  this  act  may  state  its  objections  to  the 
plans  and  recommend  such  changes,  modifications  or  alterations  as  it 
deems  necessary.  The  local  board,  commission  or  other  governing  body, 
together  with  the  commission  created  under  this  act  shall  then  either 
approve  or  disapprove  the  plans  or  grant  or  refuse  to  grant  the  permit 
or  license  as  in  their  judgment  seems  necessary  or  desirable.  Any  de- 
velopment or  improvement  enumerated  within  the  provisions  of  this  sec- 
tion, or  included  within  a  proper  interpretation  thereof,  which  shall  have 
been  commenced  or  executed  without  first  obtaining  approval  as  pro- 
vided in  this  section,  shall  be  deemed  to  be  a  purpresture  and  a  public 
nuisance  and  shall  be  abated  in  the  name  of  the  State  of  New  Jersey 
in  such  action  as  shall  be  appropriate  for  that  purpose;  provided.  ho:<.',-rcr, 
this  section  shall  not  apply  to  or  affect,  any  development  for  docks,  ship- 
ping and  transportation  facilities  heretofore  inaugurated  by  a  municipality, 
which  is  under  construction  in  whole  or  in  part,  if  such  municipality  has, 
prior  to  the  passage  of  this  act,  filed  with  the  Secretary  of  State  a  map 
showing  the  lands  proposed  to  be  taken  for  such  municipal  development. 

5.  Any  county,  town,  township,  borough,  city,  or  other  political  sub- 
division of  this  State,  may  request  the  said  commission  to  prepare  and 
propose  for  such  municipality  a  proper  plan  for  the  development  and 
improvement  of  its  water  front  upon  any  navigable  stream,  river  or 
waters  of  this  State,  or  bounding  thereon,  and  it  shall  be  the  duty  of  the 
said  commission  to  prepare  and  submit  such  plan  nr  plans  for  tlie  im- 
provement and  development  of  the  water  front  of  such  municipality  the 
navigation  of  the  waters  incident  thereto,  and  the  regulation  and  im- 
provement of  the  traffic  of  commerce  incident  thereto.  The  said  commis- 
sion for  the  preparation  and  submission  of  such  plans  may  make  such 
charge  against  the  municipality  requesting  the  same  as  is  equal  to  the 
actual  cost  of  the  preparation  of  such  plans  of  improvement,  and  the 
municipality  requesting  the  same  is  hereby  autliori/ed  to  pay  the  same 
from  any  funds  in  the  treasury  of  the  said  municipality. 

The  remaining  sections  of  the  act  (sees.  6-9)  provide  for  repeals  and 
appropriations. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      553 

that  the  others  cannot  give.  To  this  function  can  be  added  with 
profit  that  of  furnishing  expert  assistance  in  technical  matters. 
The  smaller  communities  cannot  command  the  services  of  the 
best  experts  in  their  local  problems ;  and  yet  the  solution  of  these 
problems  is  as  difficult  and  as  important  to  the  community  as 
the  problems  of  larger  and  richer  localities.  In  this  connec- 
tion it  is  interesting  to  note  that  in  one  state  a  state  authority 
with  power  to  give  advice  and  a  certain  amount  of  aid  to  local 
governments  throughout  the  state  in  their  planning,  exists ; 1T 
and  that  bodies  with  somewhat  similar  powers  are  to  be  found 
in  other  states.18 

The  Planning  Executive. — The  prevailing  form  of  plan- 
ning executive  in  the  United  States  is  the  official  commission. 
New  forms  of  governmental  activity  in  this  country  usually 
pass  through  two  administrative  phases.  At  first  the  enterprise 
is  entirely  a  movement  of  private  citizens,  who  inaugurate  a 
society  or  committee  for  the  purpose.  Funds  are  raised  by 
private  subscription.  Paid  experts  and  clerical  aids  are  em- 
ployed, but  the  committee  is  unpaid.  By  this  experiment,  to 
which  the  public  authorities  are  in  no  way  committed,  the  feasi- 
bility and  usefulness  of  the  proposed  governmental  function  is 
sufficiently  proved  to  serve  as  a  basis  for  the  effort  to  induce 
the  public  authorities  to  adopt  it.  If  this  effort  is  successful, 
the  enterprise  enters  upon  its  second  phase.  The  form  which 
this  function  now  assumes  depends  upon  its  similarity  to  other 
public  functions.  If  the  new  activity  can  be  assigned  to  some 
existing  department  or  a  new  department  created  along  existing 
lines,  this  is  done;  if  not,  a  new  commission  is  formed.  If  as 
time  goes  on  a  method  of  knitting  the  new  function  more  closely 

"  Pennsylvania.    For  the  law  in  full  see  p.  604. 

14  The  Immigration  and  Housing  Commission  of  California  (Laws 
1917,  p.  1514,  ch.  740)  and  the  Homestead  Commission  of  Massachusetts 
(Laws  191 1,  ch.  607,  1913,  ch.  595)  now  absorbed  by  the  new  Department 
of  Public  Welfare  ( 1919,  ch.  350,  sec.  87 ;  see  also  the  last  report  of  the 
Homestead  Commission — Public  Document  No.  103,  Seventh  Annual 
Report  for  1919,  published  1920)  collect  and  disseminate  housing  and 
planning  information.  The  appointment  of  state  and  local  housing  and 
planning  boards  was  proposed  by  the  Housing  Committee  of  the  State 
Reconstruction  Commission,  of  New  York;  see  its  report  dated  March 
26,  1920,  published  by  the  state.  Similar  suggestions  have  been  made 
in  other  states. 


554  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

into  the  existing  framework  of  government  develops,  this  oc- 
curs; if  not  the  function  continues  to  be  exercised  by  a  special 
commission.  City  planning  in  this  country  is  now  in  the  second 
stage  of  this  development,  planning  power  being  usually  en- 
trusted in  cities  (and  in  counties  in  the  few  instances  in  which 
they  have  been  authorized  to  plan  19)  to  a  separate  commission 
or  board;  although  in  a  few  cases  this  power  is  exercised  by  a 
city  official  or  department  or  a  committee  of  the  legislative 
body  of  the  city,  but  communities  which  cannot  at  once  obtain 
official  planning  powers  are  still  forming  unofficial  committees 
as  a  first  step  to  that  end. 

Temporary  Commissions. — In  the  beginning  of  the  city 
planning  movement  planning  commissions  were  often  created 
for  the  purpose  of  preparing  a  city  plan,  and  when  this  was 
done,  ceased  to  exist ;  but  the  mistake  of  such  a  policy  is  now 
generally  realized  and  almost  invariably  permanent  commis- 
sions are  now  appointed.  The  city  is  not  a  static  thing  to  be 
made,  complete,  according  to  model,  once  for  all,  but  a  growing 
and  changing  organism.  Not  only  must  the  plan  be  prepared 
but  it  must  be  enforced  on  forgetful  and  sometimes  unwilling 
city  officials  and  property  owners,  and  added  to  or  modified  as 
the  growth  and  change  of  the  city  demands.  All  this  requires 
the  watchfulness  and  study  of  a  planning  executive,  a  duty 
which  the  commission  that  prepared  the  plan,  if  a  proper  one, 
is  best  fitted  to  perform.  The  planning  commission  should, 
therefore,  from  the  start  be  a  permanent  one.  The  first  per- 
manent commission  was  appointed  in  Hartford,  Connecticut,  in 
lox)/.20  There  are  now  hundreds  of  such  commissions  in  this 
country. 

Authority  for  Appointment. — Official  commissions  can 
come  into  existence  only  by  virtue  of  law ;  but  it  does  not  follow 
in  all  cases  that,  without  an  express  law  authorizing  such  a 
commission,  it  will  be  impossible  to  obtain  one.  If  the  com- 
mission is  to  have  simply  advisory  power  ( and,  as  will  he  seen, 
such  a  commission  is  by  no  means  powerless),  the  city  can  in 

"New  Jersey  (1918,  ch.  185,  art.  XVI)  given  in  full  on  p.  603;  N<  w 
York  (Westchester  County)  1915,  ch.  109. 

"Special  Laws,  1907,  No.  61,  amended  ib.  1909,  No.  34,  sec.  6  and 
No.  74- 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      555 

all  probability  create  it  under  its  general  powers ;  and  in  many 
cities  planning  commissions  created  by  the  legislative  body  of 
the  city,  or  planning  committees  of  that  body  appointed  by  it 
to  whom  it  refers  planning  matters  which  come  before  it,  exist, 
and  have  done  good  work  without  any  express  provision  of  law 
authorizing  them.21 

In  a  number  of  states  some  or  all  cities  or  other  local  gov- 
ernments are  given  by  law  or  constitutional  enactment  the 
"home  rule"  right  to  adopt  or  amend  their  own  charters  and 
may,  therefore,  include  in  them  a  provision  for  a  city  planning 
commission,  with  more  than  advisory  power  if  that  is  their 
desire ;  the  extent  of  that  power  depending  upon  the  laws  and 
constitution  of  the  particular  state.22  As  a  rule  such  cities  may 
give  planning  commissions  so  created  all  the  planning  power 
which  the  city  itself  possesses.  Cities  under  a  commission  form 
of  government  do  not  consider  it  a  departure  from  principle  to 
create  planning  commissions. 

In  several  states  planning  commissions,  for  all  or  certain 
classes  of  cities,  or  individual  cities,  or  cities  and  smaller  com- 
munities, are  provided  for  by  express  statute.23  Under  these 
statutes  the  local  authorities  are  in  some  cases  directed  to  create 
commissions,24  but  most  of  these  statutes  are  permissive,  these 
authorities  being  given  the  power  to  exercise  or  not  as  they  see 
fit.  The  advantage  of  permissive  statutes  is  that  they  compel 
the  advocates  of  planning  to  educate  the  community  to  its  use 
before  the  attempt  to  plan  is  made. 

Appointment. — There  are  various  methods  of  appointing 
or  designating  the  members  of  planning  commissions.  When 
the  commission  comes  into  existence  under  the  city's  general 
powers,  if  created  by  the  mayor  its  members  are  appointed  by 

21  Examples   of    planning   bodies    so   created   are   the    Commission    for 
Bridgeport,   Connecticut,  authorized  by  the  Common  Council  August  18, 
1913 ;    that   for   Providence,    Rhode   Island,   authorized   by   ordinance,  ch. 
599,  No.  407,  approved  Dec.  2,  1913 ;  and  the  committee  of  the  Board  of 
Estimate  and  Apportionment  of   New  York  City,  authorized  by  it  Jan- 
uary, 1914. 

22  See  on  this  subject  generally  The  Law  and  Practice  of  Home  Rule 
by  Howard  Lee  McBain,  Columbia  University  Press,  New  York,  1916. 

23  See  Tables  of  Statutes. 

24  As,  for  instance,  in  Massachusetts ;  the  citation  is  given  in  the  tables 
just  referred  to. 


556  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

him,  or  if  created  by  the  council,  its  members  are  appointed  by 
it,  or  it  authorizes  the  mayor,  with  or  without  its  concurrence, 
to  appoint  them ;  for  while  there  is  no  legal  reason  why  there 
should  not  be  more  than  one  such  planning  commission  in  exist- 
ence in  the  city  at  the  same  time,  it  is  not  probable  that  this  will 
occur. 

When  commissions  are  formed  by  virtue  of  a  statute  or  a 
charter  provision,  the  statute  or  charter  provides  for  a  method 
of  their  appointment.  In  some  cases  the  city  council,  authorized 
to  create  a  commission  if  it  sees  fit,  is  also  authorized  to  decide 
how  its  members  shall  be  named ;  but  usually  the  law  directs 
that,  in  so  far  as  the  members  are  not  designated  by  law,  they 
shall  be  appointed  by  the  mayor  or  by  the  mayor  and  council. 
Appointment  solely  by  the  mayor  would  seem  to  be  the  better 
method.  The  principle  of  centralizing  both  power  and  respon- 
sibility in  government  is  now  universally  regarded  as  the  cor- 
rect one,  especially  in  the  appointment  of  officers  for  the  per- 
formance of  duties  with  regard  to  which  the  general  public 
has  little  knowledge  and  interest.  This  is  a  part  of  the  well 
known  "short  ballot"  principle. 

Membership  of  Commission. — The  number  of  members 
of  the  commission  is  as  a  rule  between  five  and  fifteen,  the 
usual  number  being  seven  or  nine.  In  special  cases,  as  in  met- 
ropolitan planning,  where  several  local  governments  are  in- 
volved, there  is  much  to  be  said  for  a  large  commission,  al- 
though even  in  that  case  it  should  be  avoided  if  politically  pos- 
sible ;  and  often  for  special  work,  such  as  for  instance  the  prep- 
aration of  zoning  regulations  and  maps,  a  representation  of 
the  various  interests  involved  larger  than  that  which  the  usual 
planning  commission  affords,  seems  desirable ;  but  a  sub-com- 
mittee may  be  formed  to  aid  in  that  work,  without  enlarging 
the  permanent  commission.  That  commission  in  city  planning 
should  as  a  rule  be  kept  small ;  for  while  it  is  important  that  it 
should  be  representative,  it  is  even  more  so  that  it  should  be 
efficient,  as  the  large  commission  in  executive  work  seldom  is. 

The  provisions  with  regard  to  the  qualifications  which  the 
members  of  the  commission  shall  have  for  the  work  vary  in 
the  different  laws  and  ordinances  under  which  the  commissions 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      557 

are  appointed,  in  some  cases  the  appointing  authority  being  left 
free  to  use  its  own  judgment,  in  others  that  authority  being 
required  to  select  men  skilled  or  learned  in  certain  matters;  in 
still  others — and  this  is  the  more  common  provision — the  law 
requiring  that  a  part,  generally  from  a  half  to  three-quarters  of 
the  whole,  shall  be  the  incumbents  of  certain  designated  city 
offices,  while  the  rest,  to  be  selected  by  the  appointing  authority, 
shall  be  citizens  holding  no  other  city  office.  In  a  few  cases 
the  law  provides  that  not  more  than  one  or  two  of  these  selected 
members  may  be  non-residents. 

The  city  officials  who  ex-offitio  are  oftenest  designated  as 
members  of  the  planning  commission  are  (in  the  order  of  fre- 
quency) the  mayor,  the  chief  of  the  department  of  public  works, 
the  head  of  the  park  board  or  department,  and  the  city  attorney. 
Often,  too,  a  representative  of  the  legislative  branch  of  the  city 
government,  or  even  representatives  of  its  two  branches  if  it  is 
bicameral,  are  so  made  members.  The  periods  of  time  for 
which  the  selected  commissioners  are  appointed  are  usually 
made  overlapping,  so  as  to  secure  a  measure  of  continuity. 

The  reason  for  including  on  the  commission  both  city  offi- 
cials and  lay  members  is  that  both  the  immediate  and  the  more 
far-reaching  points  of  view  may  be  represented.  The  plan  must 
be  sufficiently  ideal  to  provide  for  progress,  sufficiently  general 
to  unify  the  city  in  its  growth,  sufficiently  prophetic  to  provide 
for  the  future ;  but  the  ideals  must  be  capable  of  practical  ful- 
filment and  closely  related  to  the  city  as  it  is.  There  is  also 
the  danger,  especially  in  large  cities,  that  the  officials  will  be 
too  busy  with  what  they  are  likely  to  regard  as  duties  which  are 
more  specially  theirs,  to  give  attention  to  planning.  The  indi- 
vidual problems  of  each  city  may  well  modify  the  choice  of 
members  for  the  commission.  It  should  be  remembered,  how- 
ever, that  the  commission  is  entitled  to  the  assistance  and  advice 
of  the  city  officials.  There  is,  for  instance,  little  need  for  in- 
cluding the  city  attorney,  as  such,  in  the  membership. 

Powers  of  Commission. — The  powers  of  commissions  in 
matters  relating  to  city  planning  under  the  various  laws  may  be 
characterized  as  those  of  (i)  general  advice;  (2)  advice  a  pre- 
requisite to  action  by  other  city  authorities;  (3)  advice  which 


558  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

may  be  overruled  only  by  more  than  a  majority  vote  of  the  city 
council;  (4)  absolute  control.  In  addition  such  commissions 
are  given  powers  of  various  sorts  with  regard  to  special  phases 
of  planning,  are  made  the  agent  of  the  city  in  various  matters 
of  city  construction  or  are  required  to  perform  certain  duties 
for  the  city. 

General  Advice. — Practically  all  planning  commissions,  in- 
cluding those  which  are  granted  additional  powers,25  are  given 
the  right  to  make  a  plan  of  the  city  and  its  environs,  whether 
within  the  legal  limits  of  the  city  or  not.  This  plan  as  a  rule 
may  contain  anything  which  the  commissioners  think  bears  on 
the  planning  and  construction  of  the  city,  even  if  in  some  cases 
the  city  has  no  power  to  act  on  it.  The  commission  may  also 
make  reports  on  any  or  all  of  these  matters  and  give  advice  to 
city  officials  or  private  corporations  and  individuals  with  regard 
to  them.  The  right  to  receive  full  information  of  the  action  of 
the  city  authorities  on  planning  matters  as  soon  as  it  is  inaugu- 
rated and  before  such  action  becomes  final,  is  often  added. 

Innocuous  as  this  power  seems,  it  is  nevertheless  most  use- 
ful. A  good  plan  backed  up  by  intelligent  publicity  has  of 
itself  great  influence  on  the  community  and  on  city  officials. 
Gradually  some  of  its  features,  more  or  less  modified,  some- 
times for  the  better,  often,  unfortunately,  for  the  worse,  are 
carried  out;  and  even  if  city  improvements,  rightly  or  wrongly 
so  called,  are  made  in  disregard  of  it,  blocking  some  of  its 
important  features,  there  is  every  probability  that  its  influence 
for  good  will  reassert  itself  later.  Most  of  the  earlier  commis- 
sions were  given  merely  the  power  of  advice  and  nevertheless 
justified  their  existence ;  and  a  number  of  the  later  statutes  are 
similar  in  this  respect.20 

Advice  a  Prerequisite  to  Action  by  Other  City  Authori- 
ties.— Most  of  the  recent  laws  for  the  creation  of  planning 
commissions,  in  addition  to  granting  them  the  power  of 

"Such  as,  for  instance,  those  created  under  the  Minnesota,  New  Jersey 
and  New  York  laws,  given  in  full  on  pp.  57<>ff. 

"As,  for  instance,  the  commissions  appointed  under  the  Massachu- 
setts laws.  The  reference  is  given  in  the  Tahles  of  Statutes.  Of  this 
character  also  are  the  laws  of  New  Jersey,  1911,  ch.  71,  and  1913.  rhs 
72  and  170,  and  the  later  law-  <.f  Calif nrnia,  Nebraska  and  Oregon,  !i-ud 
in  the  Tables  of  Statutes  already  referred  to. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      559 

eral  advice,"  provide  that  before  any  other  city  authority  takes 
final  action  on  any  one  of  certain  specified  matters  it  shall 
notify  the  commission  and  await  for  a  certain  time  a  report 
from  it.  That  report  the  commission  is  given  the  right  and 
duty  to  submit,  but  the  authority  concerned  may  disregard  if 
it  sees  fit.27  This  is  in  accordance  with  the  best  thought  on  the 
conduct  of  representative  government.  If  power,  and  there- 
fore responsibility,  are  divided  between  the  commission  and  the 
authority  concerned,  the  voters  do  not  know  whom  to  hold 
accountable  for  action  or  inaction  and  its  results ;  but  under  the 
provision  in  question  that  authority  is  required  to  listen  to  the 
advice  of  experts,  but  must  itself  act  and  assume  full  respons- 
ibility for  so  doing;  in  other  words,  it  is  unable  to  indulge  in 
the  favorite  political  game  of  "passing  the  buck." 

Advice  to  Be  Disregarded  Only  by  More  Than  a  Ma- 
jority Vote  of  City  Council. — In  several  laws  and  ordinances 
for  the  creation  of  planning  commissions  the  recommendations 
of  the  report  which  is  a  prerequisite  to  final  action  can  be  dis- 
regarded only  by  a  vote  of  more  than  a  majority  of  the  city 
council,  the  usual  requirement  being  two-thirds.28  The  pur- 
pose of  such  a  requirement  is  to  increase  the  power  over  city 
planning  matters  of  the  experts  in  these  matters  without  unduly 
dividing  authority.  In  certain  matters  where  stability  is  espe- 
cially important  there  is  much  to  be  said  for  such  a  provision ; 
but  its  wisdom  in  all  the  many  matters  of  city  government  and 
construction  which  should  be  within  the  jurisdiction  of  the 
planning  commission  is  more  doubtful;  for  certainly  city  busi- 
ness must  be  promptly  done,  and  it  is  to  be  feared  that  by 
such  a  requirement  either  the  field  of  usefulness  of  the  commis- 
sion would  be  unduly  limited,  or  the  city's  business  confused 
and  delayed. 

Absolute  Control. — In  one  or  two  cases  29  the  commis- 

17  The  law  of  Minnesota -is  of  this  class;  and  also  the  special  law  for 
Hartford,  Connecticut,  already  mentioned,  special  laws  for  a  number  of 
other  Connecticut  cities,  and  the  law  of  Wisconsin,  in  the  tables  just  re- 
ferred to.  See  in  this  connection  also  the  New  York  law,  printed  in  full 
on  p.  581. 

28  To  this  effect  is  the  law  of  New  Jersey  printed  in  full  on  p.  578. 

29  As,   for  instance,   in   Cleveland,   under  the  provisions  of  its  charter 
and  ordinance,  printed  in  full  on  p.  587. 


560  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

sion  is  given  the  right  to  make  a  report  on  the  matters  deemed 
of  importance  in  planning,  which  the  other  city  authorities  must 
follow ;  or  is  made  the  power  in  the  first  instance  to  decide  and 
in  some  cases  to  carry  out  the  city's  policy  in  these  matters. 
Under  such  a  system  the  commission  is  in  reality  the  board  of 
public  works  of  the  city,  which  loses  the  advantage  of  having  a 
planning  commission  with  the  measure  of  detachment  essential 
to  the  task  of  planning.  Usually,  too,  such  matters  have  a 
legislative  side,  and  questions  of  policy  with  relation  to  them 
should  be  decided  by  a  legislative  body,  with  the  advice  and 
subject  to  the  criticism  of  experts.  If  the  commission  is  given 
complete  authority  in  these  matters  this  advantage  is  forfeited. 

Method  of  Conferring  Powers  upon  Commission.— 
The  powers  granted  to  commissions  vary  greatly  in  character 
and  the  methods  of  conferring  them  should  vary  accordingly. 
In  so  far  as  the  power  is  that  of  "general  advice"  which  other 
officials  may  profit  by,  but  are  not  required  to  regard  or  even 
await  in  their  action,  there  can  be  no  harm  and  may  be  much 
good  in  giving  this  power  in  the  broadest  terms;  and  such  is 
the  general  practice.  Even  matters  with  regard  to  which  the 
city  has  no  legal  right  to  act  are  included.  This  is  done,  as  a 
rule,  by  empowering  the  commission  to  make  a  map  of  the  city 
and  its  environs  within  and  without  its  legal  limits,  including 
in  it  all  matters  which  the  commission  deems  relevant,  and  also, 
for  full  measure,  giving  it  specifically  the  right  to  investigate, 
report,  and  advise  officials  and  private  parties  on  all  such  mat- 
ters. 

When  the  report  of  the  commission  is  made  a  prerequisite 
to  action  by  other  city  departments  this  power  of  report, 
whether  it  may  be  disregarded  or  overruled  by  these  depart- 
ments or  not,  should  be  limited  to  the  consideration  of  the 
more  general  aspects  of  those  few  matters  which  most  vitally 
affect  the  city  plan ;  for  the  number  of  rnatters  which  relate  to 
the  city  plan  are  very  great;  indeed  there  is  very  little  of  the 
city's  business  which  does  not  in  some  degree  or  detail  have 
such  a  bearing,  and  to  refer  most  of  the  business  transacted  by 
the  entire  body  of  the  city's  officials  to  any  one  authority  would 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES       561 

cause  intolerable  friction  and  delay,  even  if -these  officials  were 
under  no  obligation  to  follow  its  advice. 

Perhaps  the  best  method  of  giving  this  carefully  defined 
power  to  the  commission  is  to  establish  an  official  city  map  of 
those  features  which,  unlike  the  commission's  "general  advice" 
map,  city  officials  shall  be  compelled  to  follow.  This  map 
should  become  binding  when  adopted  by  the  legislative  branch 
of  the  city  government,  and  should  of  course  be  amendable  in 
the  same  way  in  which  it  is  adopted.  It  should  be  the  duty  of 
the  planning  commission  to  prepare  this  map  and  suggest  such 
additions  and  changes  in  it  from  time  to  time  as  seem  desirable. 
Being  binding  upon  the  city  no  improvement  could  be  inaugu- 
rated until  first  made  legally  a  part  of  the  map;  and  the  adop- 
tion and  change  of  this  map  should  be  forbidden  until  referred 
to  the  commission.  More  or  less  adequate  precedents  for  such 
a  map  exist  in  legislation  and  practice  in  the  country.30  In 
default  of  such  a  map  the  matters  in  which  a  report  from  the 
commission  is  a  prerequisite  to. final  action  may  be  referred  to 
it  by  naming  them  in  the  statute  or  ordinance. 

Among  the  features  of  city  construction  which,  it  seems 
clear,  should  be  referred  to  the  commission  in  this  way  are 
highways  of  all  sorts,  including  parkways,  with  their  building 
lines  or  setbacks,31  sewers,  water  pipes,  conduits,  bridges,  via- 
ducts, tunnels,  and  other  incidents;  and  parks,  playgrounds, 
squares  and  other  public  open  spaces ;  and  the  water  front,  with 
its  pier  and  bulk  head  lines,  docks,  warehouses,  and  other  har- 
bor improvements;  and  public  buildings;  and  privately  owned 
buildings,  such  as  street  railway  stations  and  ferry  sheds,  in  so 
far  as  located  on  public  property;  and  transit  lines  and  other 
public  utilities,  both  on  public  and  on  private  property,  in  so 
far  as  the  permit  for  them  is  issued  by  the  city.  A  precedent 
for  the  inclusion  of  most,  if  not  all,  of  these  features  will  be 


"°  Perhaps  the  best  is  that  of  New  York  City.  For  a  reference  to 
the  provisions  with  regard  to  the  map  of  that  city,  see  Tables  of  Statutes. 

41  Building  lines  or  setbacks  are  a  part  of  the  official  map  of  New 
York  City.  Laws,  1917,  ch.  631-632  (called  "Court  Yards  abutting 
streets"),  given  in  full  on  p.  185. 


562  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

found  in  legislation  in  this  country.32  Some  statutes  go  fur- 
ther, embracing  all  "public  improvements";33  but  this  would 
seem  to  be  both  too  broad  and  too  indefinite. 

The  same  care  that  must  be  exercised  in  deciding  what 
features  of  city  construction  shall  be  referred  to  the  commis- 
sion is  needed  in  determining  in  what  detail  these  selected  fea- 
tures shall  be  so  referred.  Certainly  it  should  pass  upon  the 
"location"  of  these  features,  which  should  include  change  of 
location,  enlargement,  alteration,  discontinuance,  etc. ;  and  upon 
the  width  and  grade  of  highways;  and  upon  the  plotting  of 
subdivisions  of  private  land;  for  all  of  which  there  is  precedent 
in  this  country. 

In  some  laws  the  commission  is  directed  to  pass  on  the 
"design"  S4  of  features  with  regard  to  which  it  is  given  juris- 
diction. This  is  giving  the  commission  duties  proper  for  an 
art  commission  to  perform,  and  is  wise  only  when  such  a 
course  is  advisable. 

Miscellaneous  Powers. — In  the  various  planning  laws 
and  ordinances,  commissions  are  given  a  variety  of  specific  and 
limited  powers  and  entrusted  with  a  number  of  duties,  some 
more  or  less  closely  related  to  planning  and  others  having  no 
particular  connection  with  it.  The  union  of  the  planning  and 
park  boards,  as  provided  for  in  some  laws,85  is  open  to  many 
objections.  The  planning  of  the  details  of  parks,  and  their  use 
and  maintenance,  is  a  task  which  should  be  entrusted,  if  pos- 
sible, to  specialists.36  Under  some  laws  the  commission  is 
given  full  power  in  the  selection  and  condemnation  of  land  for 
certain  public  purposes,  such  as  parks.37  This,  to  the  extent 

"  This  statement  is  based  upon  the  examination  of  the  statutes  for 
the  preparation  and  adoption  of  plans  or  maps  and  the  appointment  of 
planning  commissions  cited  in  the  notes  and  tables  of  this  chapter,  to 
which  the  reader  desiring  to  verify  it  is  referred. 

"Minnesota,  1919,  ch.  292. 

**As,  for  instance,  in  the  Wisconsin  statute,  already  referred  to. 

"Mass.  Acts,  1915,  ch.  165;  ordinance,  City  of  Schenectady,  New 
York,  approved  December  9,  1912;  16  Connecticut  Special  Laws  1035 
(1913,  No.  351.  sec.  10). 

**The  combination  of  planning  and  park  boards  has  many  of  the  ad- 
vantages in  exceptional  cases,  and  disadvantages  in  most  cases,  that 
obtain  in  the  combination  of  planning  an«l  art  commissions  referral  to 
bdow. 

"Detroit  Charter,  ch.  X,  sec.  7  (f),  Akron,  Ohio,  Charter,  sec.  102. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      563 

that  it  makes  the  commission  practically  the  board  of  public 
works  or  the  council  of  the  city,  is  open  to  the  same  objections 
that  have  been  urged  against  other  provisions  having  such  a 
result.  Without  citing  all  the  powers  of  this  nature  conferred 
upon  planning  commissions  in  the  various  laws  and  ordi- 
nances 38  it  may  be  said  in  general  that  in  so  far  as  possible  the 
duties  of  the  commission  should  be  limited  to  planning. 

Art  Commissions. — An  art  commission  of  a  city  has 
three  primary  duties :  to  guide  the  city  in  making  its  public 
works  more  attractive;  to  prevent  the  defacement  of  the  city 
by  semi-public  corporations  and  the  occasional  private  corpora- 
tion or  individual  who  builds  on,  over  or  under  city  property ; 
and  to  defend  the  city  from  the  ignorance  or  egotism  of  those 
seeking  a  public  location  for  inappropriate  gifts  to  it.  Espe- 
cially difficult  to  exercise  wisely  is  the  authority  over  gifts  to 
the  city  and  enterprises  involving  the  use  of  public  property. 
It  takes  tact  to  refuse  or  impose  conditions  upon  the  acceptance 
of  a  gift  in  such  a  way  as  not  to  arouse  sympathy  for  the  donor 
or  discourage  the  generosity  of  other  possible  donors.  It 
takes  constant  vigilance  to  deal  with  those  wishing  to  place, 
for  their  own  profit,  unattractive  structures  on  public  property. 
The  entire  matter  is  one  concerning  which  the  general  public 
knows  little  and  cares  less,  and  it  is  therefore  justifiable  to 
give  the  expert  liberal  powers. 

r  Unless  located  on  public  property,  art  commissions  cannot 
— as  yet  at  least — regulate  or  in  any  way  control,  under  the 
police  power,  the  appearance  of  private  property,  however  prom- 
inently it  may  be  in  public  view ;  for  this  is  regarded  as  aesthetic 
regulation,  forbidden  by  our  constitution  39  In  a  few  cases  the 
law  creating  the  commission  authorizes  it  to  offer  its  advice  to 
individuals  or  corporations  in  such  of  their  enterprises,  in  law 
private,  as  would  materially  affect  the  public  interest ;  40  they, 
of  course,  are  under  no  obligation  to  take  such  advice,  but 
sometimes  recognize  its  value. 

88  See  Detroit  Charter,  ch.  X,  sec.  7  (C)  ;  15  Connecticut  Special 
Laws,  p.  43  (1907,  No.  61,  sec.  5),  Minnesota  1919,  ch.  292,  p.  300,  sec.  3. 

**  As  our  civilization  develops,  it  is  quite  possible  that  the  law  on 
this  subject  will  change;  see  Part  VI. 

*°E.  g.,  Ala.,  1919,  p.  880;  111.,  1915,  p.  260. 


564  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

The  art  commissions  which  have  been  most  successful  have 
seen  the  need  of  originality  and  diversity  in  the  work  by  which 
the  city  was  to  profit.  They  have  been  careful  not  to  create  an 
art  censorship;  they  have  not  done  the  work  for  the  artist  or 
imposed  their  ideas  upon  him,  except  as  a  last  resort  in  the 
case  of  the  hopelessly  bad  workman.  They  have  rather  limited 
themselves  to  giving  aid  in  the  selection  of  a  site,  and  refusing 
to  allow  the  city  to  be  burdened  in  perpetuity  with  the  hopelessly 
bad.  Occasionally,  when  the  powers  of  the  commission  were 
statutory  or  under  an  ordinance  instead  of  being  a  grant  in  the 
state  constitution,  the  city  authorities,  perhaps  with  the  aid  of 
the  state  legislature,  have  exempted  a  pet  enterprise  from  the 
supervision  of  the  commission;  occasionally  political  pressure 
has  overcome  their  well-founded  opposition  to  a  project  or  in- 
fluenced their  decision  with  regard  to  it ;  occasionally  they  have 
made  glaring  mistakes ;  and  often  they  have  failed  to  secure  the 
best  design  for  the  city.  They  have,  however,  prevented  the 
city  from  being  burdened  with  a  vast  mass  of  hopelessly  bad 
work,  and  by  choosing  the  simple  and  appropriate  design  they 
have  saved  the  city  large  sums  of  money  and  at  the  same  time 
obtained  for  it  a  more  pleasing  result.  In  proportion  to  the 
value  of  the  work  passed  upon,  and  even  in  proportion  to  the 
direct  money  saving  to  the  city,  it  is  safe  to  say  that  the  ex- 
penses of  successful  commissions  like  those  of  New  York  or 
Philadelphia  are  insignificant.41 

41  Under  some  of  the  Art  Commission  laws  (e.  g.,  that  of  New  York 
City,  given  in  full  on  p.  584  of  this  work)  certain  members  must  be  ap- 
pointed by  the  appointing  authority  from  a  list  proposed  by  certain 
societies  not  connected  with  the  city  government.  This  arrangement 
has  been  criticised  on  the  ground  that  it  unduly  fetters  the  appointing 
authority  and  limits  his  responsibility,  that  it  gives  persons  not 
nected  with  the  government  undue  power,  which,  possibly,  they  may 
exercise  for  the  furthering  of  personal  interests,  etc. ;  and  praised  be- 
cause it  secures  better  men  for  technical  tasks  than  any  other  method. 
The  device  is  not  limited  to  the  appointment  of  art  commissions,  but 
is  usually  employed  only  in  technical  matters. 

What  few  legal  decisions  there  are  on  the  general  subject  sust.iin 
the  legality  of  this  procedure.  Bellows  v.  City  Council  of  Cincinnati, 
II  Ohio  State  Reports,  544  (1860);  In  re  Bulger,  In  re  Merrill,  45  Cal. 
533  (1873)  I  see  also  Spring  Valley  Water  Works  v.  San  Francisco,  61 
Cal.  3,  at  p.  7  (1881). 

In  so  far,  however,  as  a  state  constitution,  in  its  "home  rule"  pro- 
visions or  elsewhere,  prescribes  that  local  officials  shall  be  elected  l>y 
local  electors  or  appointed  by  local  authorities,  it  would  seem  to  render 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      565 

The  Combination  of  Art  and  Planning  Commissions. 

— In  several  statutes  the  planning  commission  is  also  the  art 
commission  of  the  city.42  Except  in  small  cities  or  towns, 
where  it  may  be  difficult  to  find  suitable  men  in  sufficient  num- 
bers to  serve  on  the  two  bodies,  the  wisdom  of  this  course  is 
doubtful.  It  is  true  that  beauty  is  and  must  be  an  integral  part 
of  construction  and  not  an  afterthought;  it  is  true  that  beauty 
and  fitness  for  the  purposes  for  which  the  structure  or  other 
improvement  is  intended  cannot  be  divorced,  or  either  of  them 
considered  separate  from  location.  Nevertheless  the  types  of 
men  who  are  fitted  to  serve  on  an  art  commission  and  on  a  plan- 
ning commission  are  widely  different,  and  better  results  will 
be  obtained  where  it  is  possible  to  keep  the  two  commissions 
cooperating  but  separate. 

The  state  statute  with  regard  to  local  art  commissions  is 
usually  an  empowering  act,  giving  the  local  community  the 
right  to  create  such  a  commission  if  it  sees  fit;  but  the  statute, 
almost  invariably,  provides  that,  once  created,  the  consent  of  the 
commission  is  essential  to  the  purchase  or  acceptance  as  a  gift 
of  works  of  art ;  and  as  a  rule  its  approval  of  the  design,  and  in 
some  cases  of  the  location  of  public  buildings  and  buildings  of 

any  such  laws  invalid,  since  they  limit  the  right  of  appointment.  See, 
for  instance,  New  York  constitution,  art.  X,  sec.  2;  People  ex  rel.  Bolton 
v.  Albertson,  55  N.  Y.  50  (1873)  ;  Allison  v.  Welde,  172  N.  Y.  421  (1902)  ; 
Matter  of  Brenner,  170  N.  Y.  186  (1902)  ;  Rathbone  v.  Wirth,  150  N.  Y. 
459  (1896)  ;  People  ex  rel.  Balcom  v.  Mosher,  163  N.  Y.  32  (1900).  See, 
however,  matter  of  Kane  v.  Gaynor,  144  App.  Div.  196,  129  N.  Y.  Supp. 
280,  affd.  202  N.  Y.  615  (1911),  and  the  civil  service  cases  cited  below. 

The  legislature  may  prescribe  reasonable  qualifications  for  those  who 
are  to  be  appointed  to  office.  Scott  v.  Saratoga  Springs,  131  Appellate 
Division  Reports  (N.  Y.)  347  (1909)  ;  People  ex  rel.  Devery  v.  Coler, 
173  N.  Y.  103  (1903)  ;  Hellyer  v.  Prendergast,  176  Appellate  Division 
Reports  (N.  Y.)  383  (1917)  ;  People  ex  rel.  Qua  v.  Gaffney,  142  Appel- 
late Division  Reports  (N.  Y.)  122  (1911). 

Civil  service  regulations  are  reasonable  provisions  in  this  connection. 
Rogers  v.  Common  Council  of  Buffalo,  123  N.  Y.  173  (1890)  ;  Chittenden 
v.  Wurster,  153  N.  Y.  664  (1897)  ;  People  v.  Angle,  109  N.  Y.  564  (1888)  ; 
People  ex  rel.  Weintz  v.  Burch,  79  Appellate  Division  Reports  (N.  Y.) 
156  (1903)  ;  Butler  v.  White,  83  Federal  Reporter  578  (1897). 

It  should  be  noted  that  art.  X,  sec.  2  of  the  New  York  constitution, 
referred  to  above,  does  not  prevent  the  appointment  to  an  office  created 
after  the  adoption  of  that  constitution  in  such  manner  as  the  legislature 
may  direct ;  see  Allison  v.  Welde,  cited  above. 

42  As,  for  instance,  the  law  for  the  planning  of  third  class  cities  and 
smaller  communities  in  New  Jersey,  given  in  full  on  p.  578  and  the  Ohio 
planning  law. 


566  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

individuals  or  private  or  semi-public  corporations  on  public 
land,  is  required.  There  are  also  state  art  commissions,  to 
which  usually  only  advisory  power  is  granted,  and  a  national 
commission,  whose  power,  also,  is  advisory. 

Zoning  Administration. — The  first  statute  in  this  country 
providing  for  systematic  zoning — and  it  is  only  such  zoning 
that  will  be  here  considered — was  passed  by  the  State  of  New 
York  in  1914.  This  statute  was  permissive,  authorizing  the 
city  of  New  York,  if  it  saw  fit  to  do  so,  to  prepare  and  adopt  a 
zoning  regulation  and  a  plan  dividing  the  city  into  height,  area 
and  use  districts  in  accordance  with  its  terms.  The  statute  left 
the  preparation  and  administration  of  the  regulation  entirely 
to  the  city  authorities  but  to  a  certain  extent  specified  the  man- 
ner in  which  they  should  proceed  in  so  doing.  In  these  respects 
the  subsequent  zoning  laws  passed  in  various  states  in  this 
country  have  followed  New  York.  These  statutes  sometimes 
select  certain  cities  or  classes  of  cities  on  whom  to  confer  the 
zoning  power,  sometimes  extend  the  power  also  to  the  smaller 
communities.43 

"These  statutes  are  given  in  the  Tables  of  Statutes  below.  The  New 
York  law  provides  for  the  division  of  the  city  into  "districts  of  such 
number,  shape  and  areas  as  it  [the  city]  may  deem  best  suited  to  carry  out 
the  purposes"  of  the  law;  and  most  of  the  later  laws  in  other  states  are 
similar  in  this  respect.  The  California  and  Oregon  laws,  however,  pro- 
vide specifically  for  the  division  of  the  city  into  districts  to  segregate 
"the  several  classes  of  business,  trades,  or  callings,  the  location  of  apart- 
ment or  tenement  houses,  club  houses,  group  residences,  two  family 
dwellings,  single  family  dwellings,  and  the  several  classes  of  public,  and 
semi-public  buildings,"  etc.  See  with  regard  to  this  difference  pp.  -H>7t 
277,  291  of  this  work. 

The  California  and  Oregon  laws  are  the  only  ones  that  specifically 
provide  for  the  regulation  of  "callings,"  which  would  include  professions, 
etc.,  that  are  not  usually  called  trades  or  business,  the  regulation  of  which 
is  specifically  mentioned  in  the  other  laws.  The  regulation  of  callings  is 
probably  covered  in  most  cases,  by  other  provisions  of  these  laws. 

It  is  most  important  that  the  law  should  authorize  the  regulation  of 
the  use  of  vacant  land  (see  p.  191  on  this  point).  The  Ohio  and  District 
of  Columbia  laws  specifically  mention  "premises"  in  this  connection, 
which  would  include  land.  With  the  exception  of  the  Massachusetts  law, 
the  other  statutes  in  most  connections  probably  provide  for  the  regula- 
tion of  land.  The  Massachusetts  constitutional  amendment  and  law 
under  it,  limit  regulation  to  "buildings." 

The  New  Jersey  law,  like  the  New  York  law  in  this  respect,  provides 
for  the  regulation  of  "the  location  of  trades  and  industries"  hut  not  of 
residences.  In  a  New  Jersey  case  (Bell  v.  Town  of  \\Ystfie1d.  pending. 
December,  1921,  in  the  Supreme  Court  of  the  state)  it  is  claimed  that, 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      567 

Preparation  and  Adoption  of  Regulation  and  Plan. — 
The  New  York  law  of  1914  provided  that  the  city  of  New 
York  in  its  zoning  should  appoint  a  commission  to  make  inves- 
tigations, and  prepare  the  regulations,  and  the  plan  for  dividing 
the  city  into  districts  under  it;  that  this  commission  should 
then  hold  public  hearings  and  make  its  report  to  the  Board  of 
Estimate  and  Apportionment — the  upper  legislative  body  of  the 
city — and  go  out  of  existence;  that  the  Board  of  Estimate 
should  be  free  to  take  such  action  on  this  report  as  it  saw  fit, 
but  that  it  should  not  adopt  a  regulation  or  plan  until  it  had 
received  the  report.44 

As  a  rule  45  the  states  passing  zoning  laws,  influenced  by 
the  example  of  New  York,  provide  that  the  zone  regulation 
shall  be  prepared  by  some  commission  or  other  body  distinct 
from  the  city  council  and  that  the  council  shall  await  this  report 
before  acting  in  this  matter.  For  this  purpose  sometimes  a 
commission  is  formed,  made  up  largely  of  city  officials,  the 
existence  of  which  is  continued  to  investigate  and  report  on 
amendments  as  they  are  proposed ; 46  oftener  the  planning  com- 
mission of  the  city  is  used  for  the  purpose.  Generally,  as  under 
the  New  York  law,  the  council  is  forbidden  to  act  until  the  re- 

under  this  law,  residential  districts  may  be  created  by  segregating  trades 
and  industries,  but  that  there  is  no  authority  for  creating  different  classes 
of  residential  districts  (such  as  one  family,  and  multi-family  districts) 
or  of  regulating  residences,  by  use,  in  any  way. 

The  statute  also  provides  for  the  regulation  of  the  "location  of  build- 
ings designed  for  specified  uses."  Quaere,  whether  this  does  not  au- 
thorize the  regulation  of  the  location  of  one  family  and  multi-family 
houses,  as  such  uses. 

If  the  present  statute  does  not  authorize  the  creation  of  such  resi- 
dential districts,  the  legislature  may,  if  desired,  pass  a  statute  providing 
for  such  districts,  if  not  contrary  to  the  constitution  of  the  state  and 
nation.  With  regard  to  the  constitutional  question,  see  p.  291  of  this  work. 

Such  a  statute  (P.  L.  1922,  p.  277,  ch.  162,  amending  P.  L.  1920,  ch. 
240)  has  now  been  passed. 

44  With  regard  to  the  New  York  Commission  and  its  work  see  p.  271. 

45  In  the   following  laws  there  are  no  special  provisions  with   regard 
to  the  preparation  and  adoption  of  the  Zone  regulation  and  plan;  Massa- 
chusetts ;  New  Jersey,  1920,  ch.  240 ;  New  York  cities  law ;  Pennsylvania, 
first-class   cities  law;   Wisconsin.     In   Wisconsin  ten  voters   can  petition 
for  a  zoning  regulation.     Under  the  Washington  law  the  regulation  and 
plan  are  prepared  and  adopted  by  a  special  body  made  up  of  the  commis- 
sioners  for  the  district  and  a  few  additions. 

46  New  Jersey  1917,  ch.  54;  1918,  ch.  146,  as  amended  by  1920,  ch.  274; 
1921,  ch.  276. 


568  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

port  has  been  received ;  and  then  by  a  majority  vote,  as  in  other 
matters,47  can  take  such  action  as  it  sees  fit. 

Amendments. — As  a  rule  the  zoning  laws  recognize  that 
zoning  regulations  and  the  districts  created  under  them,  al- 
though properly  subject  to  change,  should  be  stabilized  as  much 
as  possible.  To  that  end  they  occasionally  provide  that  the 
special  body  or  planning  commission  that  prepared  the  regula- 
tion and  plan  shall  investigate  and  report  to  the  council  on 
amendments  before  the  council  shall  act  on  them.48  Usually, 
however,  the  action  of  interested  property  owners  is  relied  on. 
Thus  the  New  York  laws  provide  that : 

"If  ...  a  protest  against  such  amendment,  supplement  or 
change  be  presented,  duly  signed  and  acknowledged  by  the 
owners  of  twenty  per  centum  or  more  of  any  frontage  pro- 
posed to  be  altered,  or  by  the  owners  of  twenty  per  centum  of 
the  frontage  immediately  in  the  rear  thereof,  or  by  the  owners 
of  twenty  per  centum  of  the  frontage  directly  opposite  the 
frontage  proposed  to  be  altered,  such  amendment  shall  not  be 
passed  except  by  the  unanimous  vote  of  the  council." 48 
In  giving  the  property  owners  the  right  to  require  that 
amendments  and  changes  shall  be  passed  by  more  than  a  ma- 
jority vote  of  the  legislative  body  of  the  city,  many  of  the 
zoning  laws  follow  New  York,  but  as  a  rule  do  not  require  a 
unanimous  vote  for  the  purpose.50 

*In  Ohio  a  three-fourths'  vote  of  the  entire  membership  of  the  coun- 
cil is  required  to  vary  from  the  report.  See  also  the  Illinois  law. 

*New  Jersey,  1917,  ch.  54,  New  Jersey  1918,  ch.  146,  as  amended  by 
1920,  ch.  274.  Missouri,  1921,  p.  481,  approved  April  i. 

*The  quotation  is  from  the  New  York  Cities  law.  The  law  for  New 
York  City  is  practically  the  same. 

**In  Massachusetts  the  statute  empowering  cities  and  towns  to  pass 
zoning  regulations  (1920,  ch.  601)  provides  (sec.  9)  that:  "If  any  owner 
of  real  estate  in  a  city  which  would  be  affected  by  the  proposed  repeal 
or  modification  objects  thereto,  it  shall  not  be  repealed  or  modified  ex- 
cept by  a  unanimous  vote  of  all  the  members  of  the  city  council :  and 
in  no  case  shall  an  ordinance  or  bylaw  established  under  the  provisions 
of  this  act  be  repealed  or  modified  except  by  a  two-thirds  vote  of  all 
the  members  of  the  city  council,  or  by  a  two-thirds  vote  of  the  voters 
of  a  town  voting  thereon  at  an  annual  or  special  town  meeting  duly  called 
for  the  purpose." 

The  meaning  of  the  word  "affected"  in  this  connection  has  not  as 
yet  been  judicially  determined.  It  is  to  avoid  all  doubts  of  this  sort  that 
the  statutes  and  ordinances  usually  specify  what  property  owners  shall 
be  deemed  to  be  affected,  and  therefore  have  the  right  to  object. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      569 

Boards  of  Appeal. — The  statutes  and  ordinances  dealing 
with  building  are  invariably  full  of  technical  details.  Such 
details  are  to  be  found  in  greater  number  in  the  building  code 
of  a  city  than  in  its  zoning  ordinance;  but,  for  all  practical  pur- 
poses, the  code  and  the  ordinance  are  one  long  and  complicated 
regulation  with  which  the  builder  must  comply.  A  failure  to 
observe  these  requirements  always  involves  work  to  be  done 
over,  increased  carrying  charges,  loss  of  income  and  heavy 
expenses  of  many  sorts.  It  is  therefore  important  that  there 
should  be  a  quick  hearing  and  appeal  from  any  contested  deci- 
sion of  the  city  officials  who  enforce  these  ordinances.  In  New 
York  City,  boards  of  appeal,  created  to  revise  the  decisions  of 
officials  acting  under  other  statutes  and  municipal  regulations 
with  regard  to  buildings,  were  empowered  to  perform  the  same 
function  in  the  administration  of  the  zoning  resolution;  and 
most  of  the  states  in  their  zoning  laws  now  authorize  the  munic- 
ipalities having  the  right  to  pass  zoning  ordinances,  to  em- 
power existing  bodies  to  hear  appeals  or  create  bodies  for  the 
purpose.  For  reversal  more  than  a  majority  vote  is  generally 
required. 

A  function  of  boards  of  appeal  quite  as  important  as  the 
correction  of  errors,  is  that  of  deciding  border  line  and  excep- 
tional cases,  and  of  varying  the  requirements  of  zoning  regu- 
lations in  harmony  with  their  spirit,  in  cases  where  to  carry 
them  out  literally  would  cause  unnecessary  and  excessive  hard- 
ship. On  this  subject  Edward  M.  Bassett,  Esq.,  Counsel  of 
the  Zoning  Committee  of  New  York  City  says :  51 

"If  zoning  were  done  under  eminent  domain  there  would  be  no 
special  need  for  a  board  of  appeals.  The  only  effective  zoning,  how- 
ever, is  done  under  the  police  power  of  the  state.  This  power  can 
only  be  invoked  for  the  health,  safety,  morals  and  general  welfare  of 
the  community.  No  money  compensation  is  made  to  land  owners 
although  they  part  with  somewhat  of  the  absolute,  unqualified  con- 
trol of  their  own  property.  All  owners  are  supposed  to  be  benefited 
by  regulation  in  the  interest  of  the  community  whereby  each  owner 

61  In  a  pamphlet,  published  in  1921,  entitled  The  Board  of  Appeals  in 
Zoning.  The  Zoning  Committee  is  a  voluntary  organization,  which  exists 
for  the  purpose  of  aiding  in  the  enforcement  of  the  New  York  City 
zoning  resolution,  and  incidentally  is  of  great  aid  to  zoning  in  other  parts 
of  this  country.  The  second  edition  of  this  pamphlet  is  in  press. 


570  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

to  some  extent  is  compelled  so  to  use  his  own  as  not  to  injure  another, 
and  therefore  each  owner  cannot  complain  so  long  as  this  commu- 
nity power  is  exercised  reasonably,  impartially  and  without  confisca- 
tion or  arbitrariness.  The  zoning  resolution  of  the  city  of  New  York, 
which  city  was  the  first  in  this  country  to  attempt  comprehensive 
zoning,  has  been  pronounced  constitutional  by  the  highest  court  of 
the  state  because  that  court  considered  it  to  be  a  reasonable  and  non- 
confiscatory exercise  of  the  police  power. 

"'In  a  great  metropolis  like  New  York,  in  which  the  public  health, 
welfare,  convenience  and  common  good  are  to  be  considered,  I  am 
of  the  opinion  that  the  resolution  was  not  an  incumbrance,  since  it 
was  a  proper  exercise  of  the  police  power.  The  exercise  of  such 
power,  within  constitutional  limitations,  depends  largely  upon  the 
discretion  and  good  judgment  of  the  municipal  authorities,  with 
which  the  courts  are  reluctant  to  interfere.  The  conduct  of  an 
individual  and  the  use  of  his  property  may  be  regulated.'  Lincoln 
Trust  Co.  v.  Williams  Bldg.  Corp.,  229  N.  Y.  313. 

"Wherever  the  application  of  a  zoning  ordinance  is  arbitrary  the 
courts  are  likely  to  declare  it  void  in  that  particular.  After  an  ordi- 
nance has  been  declared  void  in  five  or  six  particulars  it  has  little 
binding  force.  Just  here  is  where  the  need  of  a  board  of  appeals 
comes  in.  However  careful  the  council  may  be  to  avoid  provisions 
that  may  turn  out  to  be  arbitrary,  every  builder  knows  that  excep- 
tional situations  will  arise  where  the  written  rule  fails  to  provide  the 
right  thing  in  a  specific  case.  No  words  of  a  written  law  can  pre- 
scribe what  ought  to  be  done  in  the  thousands  of  exceptions  which 
can  arise  in  the  construction  and  use  of  buildings.  The  council  of  a 
large  city  cannot  and  ought  not  to  give  its  time  to  granting  specific 
permits  for  buildings.  The  ordinance  and  maps  should  be  compre- 
hensive and  when  altered  the  alterations  should  apply  comprehen- 
sively and  not  be  limited  to  a  single  building  or  plot.  Some  board 
that  can  investigate  the  environment,  view  the  plot  or  building  if 
necessary  and  express  an  expert  opinion  on  the  situation,  should  in 
proper  cases  under  the  guidance  of  the  rules  laid  down  by  the  coun- 
cil be  given  power  to  vary  the  strict  letter  of  the  law. 

"An  outlying  unbuilt  district  may  properly  be  zoned  as  residen- 
tial. In  it  there  may  be  a  hill  composed  of  good  sand  for  cement 
blocks.  It  is  both  economy  and  common  sense  that  some  board  should 
have  authority  to  permit  the  temporary  use  of  cement  block  making. 
The  ordinance  should  give  such  power  to  a  board  of  appeals.  If 
there  is  no  board  of  appeals,  the  council  itself  would  have  to  con- 
sider the  question  of  altering  the  sand  hill  from  a  residence  district 
to  an  unrestricted  district  so  that  the  cement  block  works  might  be 
built  and  operated.  But  this  change  would  open  up  the  locality  for  a 
chemical  factory  or  some  other  nuisance  factory  that  might  later 
prevent  the  upbuilding  of  the  district  with  good  residences.  The 


other  horn  of  the  dilemma  would  be  for  the  council  to  make  a  specific 
exception  for  the  sand  hill  and  allow  cement  blocks  to  be  made  tem- 
porarily. Where,  however,  the  council  itself  goes  into  the  field  of 
making  specific  exceptions  for  particular  plots  or  buildings  all  over 
the  city,  it  would  mean  the  breakdown  of  the  zoning  ordinance.  The 
best  way  to  handle  the  subject  is  for  the  council  to  control  the  ordi- 
nance and  maps  which  should  be  as  permanent  as  possible,  and  a 
board  of  appeals  should  exercise  discretion  on  specific  permits  of 
exceptional  character. 

"Sometimes  the  dividing  line  between  residence  and  business  dis- 
tricts will  run  through  a  single  lot  leaving  the  business  portion  too 
small  for  a  suitable  store.  The  owner's  neighbors  on  either  side  may 
have  had  stores  erected  before  the  passage  of  the  zoning  ordinance, 
so  that  his  lot  is  not  eligible  for  a  residence.  If  now  he  cannot  put 
up  a  paying  store,  his  property  is  practically  confiscated  by  the  zon- 
ing ordinance.  The  court  would  very  likely  declare  that  in  his  case 
the  zoning  ordinance  is  arbitrary  and  void.  A  well  drawn  ordinance, 
however,  should  provide  that  in  exceptional  cases  like  this  a  board  of 
appeals  should  have  power  to  issue  a  permit,  allowing  the  store 
building  under  suitable  safeguards  to  be  projected  into  the  residence 
district.  If  there  was  no  board  of  appeals,  the  owner  could  obtain 
a  writ  of  mandamus  against  the  building  commissioner  who  refused 
him  his  permit  for  a  store  building.  This  would  bring  directly  before 
the  courts  the  question  of  whether  the  ordinance  in  this  particular 
was  arbitrary  and  void,  and  the  courts  would  probably  say  that  it 
was.  If,  however,  there  was  a  board  of  appeals  given  authority  in 
the  ordinance  to  exercise  its  discretion  in  border-line  cases,  the 
owner  could  not  at  once  obtain  a  writ  of  mandamus.  He  must  first 
exhaust  the  remedies  which  the  law  has  given  him.  If  there  is  a 
board  of  appeals  with  power  to  issue  permits  in  exceptional  cases 
like  his,  he  must  make  his  application  to  the  board  of  appeals,  which 
application,  if  meritorious,  would  be  granted.  If  the  board  of 
appeals  considered  that  the  application  was  not  meritorious,  then  the 
owner  could  not  obtain  his  writ  of  mandamus  with  any  chance  of 
success.  The  court  trying  the  case  would  say  that  an  expert  body 
especially  constituted  under  the  law  of  the  state  and  appointed  by  the 
city  had  given  him  his  day  in  court  and  had  found  that  his  applica- 
tion was  not  meritorious.  His  legal  counsel  would  probably  advise 
him  against  the  mandamus  and  would  apply  for  a  writ  of  certiorari 
to  review  the  action  of  the  board  of  appeals.  This  review  is  usually 
predicated  on  the  constitutionality  of  the  ordinance.  In  the  five 
years  of  operation  of  the  zoning  resolution  of  the  city  of  New  York 
not  a  single  writ  of  mandamus  under  it  against  any  one  of  the  bor- 
ough building  superintendents  has  come  up  for  trial.  Such  ques- 
tions have  always  gone  before  the  board  of  appeals  where  a  very 
large  proportion  of  them  have  been  settled  to  the  satisfaction  of  the 


572  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

litigants.  The  decisions  of  the  board  of  appeals  have  been  reviewed 
by  certiorari  in  a  considerable  number  of  cases  but  without  damage 
or  danger  of  damage  to  the  integrity  of  the  zoning  resolution.  If  the 
city  of  New  York  did  not  have  a  board  of  appeals  in  connection 
with  the  zoning  resolution  with  its  duties  defined  in  the  charter  and 
the  resolution  itself,  there  is  no  doubt  that  numerous  cases  would 
have  come  before  the  courts  involving  the  constitutionality  of  the 
zoning  resolution.  The  decisions  in  some  of  these  cases  would  un- 
doubtedly have  been  adverse.  Instead  of  this  the  existence  of  the 
board  of  appeals  has  probably  been  the  greatest  element  in  making 
possible  the  remarkable  statement  that  for  five  years  there  has  not 
been  any  declaration  of  a  court  that  any  provision,  however  minute, 
of  the  New  York  zoning  resolution  and  maps  is  unconstitutional. 

"The  two  illustrations  given  above  could  be  multiplied.  Like  all 
exceptional  situations  those  arising  in  the  planning  of  buildings  come 
unexpectedly.  No  words  can  be  comprehensive  enough  to  embrace 
them  all.  Some  of  them  arise  where  lots  are  of  odd  sizes  and  shapes. 
Sometimes  a  new  building  is  the  completion  of  a  unit,  part  of  which 
was  built  before  the  zoning  ordinance,  and  adaptation  is  necessary. 
Sometimes  a  required  court  would  only  be  of  advantage  to  an  exist- 
ing building  that  had  left  no  open  space  whatever.  Sometimes  great 
unnecessary  expense  can  be  avoided  in  the  design  of  a  business 
building  and  yet  it  can  be  adapted  to  the  spirit  of  the  law.  Some- 
times it  is  the  prevention  of  public  garages  near  schools  and  hos- 
pitals when  located  in  districts  which  otherwise  would  permit  them. 
Sometimes  it  is  the  enlargement  of  a  store  or  factory  on  land  already 
owned  and  where  irremediable  loss  would  be  caused  to  the  owners  if 
they  were  compelled  to  move  elsewhere  in  order  to  enlarge  their 
building  space.  Many  such  situations  would  be  fraught  with  danger 
to  the  zoning  plan  if  there  were  no  board  of  appeals."* 

"A  hoard  of  appeals,  having  the  right  to  give  or  withhold  relief  at  Its 
discretion,  may  grant  it  subject  to  conditions,  and  thus  obtain  results 
which  it  could  not  get  in  any  other  way.  By  this  method  the  board  of 
appeals  of  New  York  City  has  repeatedly  made  a?sthetic  requirements, 
such  as  that  the  facade  of  a  business  structure  extending  from  a  busi- 
ness into  a  residential  district  should,  on  the  residential  street,  be  con- 
structed with  due  regard  to  the  amenities  of  the  residential  district. 
Sometimes  the  condition  is  imposed  to  preserve  the  quiet  and  comfort 
of  the  more  restricted  district,  as  when  the  permit  requires  the  business 
structure  to  have  its  entrances  all  on  the  business  street,  thus  to  some 
extent  keeping  employees  and  customers  off  the  residential  street. 

It  is  interesting  to  note  that  in  Cleveland,  Ohio,  a  board  of  appeals 
is  given  the  power  to  mitigate  any  hardship  in  the  administration  of  a 
building  line,  or  setback  ordinance,  which  does  not  provide  for  com- 
pensation (No.  52247- A.  B.,  passed  December  6.  1920)  ;  and  that  the 
highest  court  in  Connecticut,  in  upholding  a  statute  making  a  building 
and  street  line  plan,  imposed  upon  property  owners  under  the  police 
power,  binding  on  them,  says  that  the  plan  must  be  presumed  to  be  a 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      573 

For  the  creation  of  boards  of  appeal  statutory  authority  is 
necessary;  it  cannot  be  done  by  the  vote  of  the  legislative  body 
of  the  city  alone.  In  passing  upon  the  validity  of  such  a  vote 
by  the  upper  legislative  authority  of  New  York  City,  creating 
such  a  board  the  New  York  court  said : 

"The  board  of  estimate  having  been  vested  by  the  legislature  with 
the  power  of  framing  the  regulations  and  restrictions  provided  for 
by  the  acts  of  1914  and  1916,  could  not,  in  the  absence  of  express 
legislative  authority,  depute  to  an  inferior  board  the  power  to  dis- 
pense in  its  discretion  with  compliance  with  such  regulations.  If  the 
board  of  estimate  had  such  a  power  to  be  exercised  or  not  in  its 
discretion,  it  could  not  delegate  such  discretion  to  a  subordinate 
administrative  or  ministerial  board.  Birdsall  v.  Clark,  73  N.  Y.  73; 
Phelps  v.  City  of  New  York,  112  id.  216,  220;  Ontario  Knitting  Co. 
v.  State,  205  id.  409,  416.  The  question  has  ceased  to  be  of  impor- 
tance for  future  cases,  because  of  the  amendment  made  this  year  to 
section  242b,  which  expressly  authorizes  the  board  of  estimate  to 
confer  such  power  on  the  board  of  appeals."6 

Where  a  board  of  appeals  is  endeavoring  to  obviate  prac- 
tical difficulties  and  avoid  unnecessary  hardships  in  the  admin- 
istration of  a  zoning  regulation,  there  seems  to  be  a  tendency 
for  it  unduly  to  magnify  its  powers.  In  this  connection  Mr. 
Bassett  says : 5* 

"Before  the  board  of  appeals  can  make  an  adjustment  under  this 
provision  it  must  first  find  that  there  is  a  practical  difficulty  or  an 
unnecessary  hardship,  and  after  that  find  and  prescribe  an  alterna- 
tive' method  that  is  in  harmony  with  the  purpose  and  intent  of  the 
zoning  resolution.  If,  for  instance,  the  board  of  estimate  has  made 
a  certain  street  block  a  business  district,  it  is  not  within  the  power 
of  the  board  of  appeals  to  declare  that  the  street  is  so  depressed  that 
it  is  an  unnecessary  hardship  to  prevent  a  lot  owner  from  building 
a  public  garage  which  is  prohibited  in  such  a  district.  If  the  locality 
is  so  depressed  as  to  warrant  this  statement,  the  board  of  appeals 
should  refer  the  applicant  to  the  board  of  estimate  so  that  the  board 
of  estimate  as  the  legislative  authority  of  the  city  may  change  the 
district  from  business  to  unrestricted.  It  is  not  for  the  board  of 

reasonable  one  because  an  appeal  is  allowed  in  the  act  to  the  regular 
courts.  (Windsor  v.  Whitney  et  al.,  95  Conn.  357  (1920),  see  also  Ingham 
v.  Brooks  et  al.,  95  Conn.  317  (1920).  For  a  further  reference  to  this 
case,  see  p.  36. 

63  People  ex  rel.  Beinert  v.  Miller,  100  Misc.  318  at  326. 

M  In  the  pamphlet  just  cited. 


574  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

appeals  to  endeavor  to  make  this  piece  of  legislation  through  the 
form  of  a  non-conforming  permit  on  the  ground  of  unnecessary  hard- 
ship. Similarly  if  such  a  locality  is  a  residence  district,  it  is  not  for 
the  board  of  appeals  to  say  that  stores  have  become  so  numerous,  that 
on  the  ground  of  unnecessary  hardship  it  will  permit  another  store 
to  be  built  by  the  applicant.  That  is  alteration  and  not  adjustment. 
If  the  district  has  become  so  much  of  a  business  district  that  it  is  an 
unnecessary  hardship  to  prevent  a  man  from  building  a  store,  then 
it  is  for  the  board  of  estimate  to  make  it  a  business  district  and  not 
for  the  board  of  appeals  to  try  to  accomplish  the  same  result  by 
exceeding  its  powers.  The  provision  giving  the  board  of  appeals 
power  to  vary  in  cases  of  unnecessary  hardship  is  a  salutary  one 
where  it  is  meant  to  apply.  These  comprise  architectural  necessities 
in  designing  buildings,  adaptation  of  buildings  to  irregular  and 
unusual  lots  or  environment,  completion  of  architectural  units  already 
partly  built  and  a  multitude  of  adjustments  that  the  human  mind 
cannot  foresee  or  express  in  words.  In  general  what  can  be  equally 
well  accomplished  by  a  change  in  the  resolution  or  maps  is  never 
within  the  power  of  the  board  of  appeals  but  always  within  the  power 
of  the  board  of  estimate  and  apportionment.  'Equally  well  accom- 
plished" means  so  accomplished  for  the  benefit  of  the  community  and 
not  for  the  benefit  of  the  applicant." 

To  the  same  effect  is  a  recent  decision  of  the  New  York 
courts,  in  rendering  which  the  judge  says:65 

"But  the  board  contends  it  had  the  power  to  grant  this  applica- 
tion under  section  20  of  the  zone  regulations  without  regard  to  any 
consents.  This  section  provides,  'Where  there  are  practical  diffi- 
culties or  unnecessary  hardships  in  the  way  of  carrying  out  the 
strict  letter  of  the  provisions  of  this  resolution  the  board  of  appeals 
shall  have  power  in  a  specific  case  to  vary  any  such  provisions  in 
harmony  with  its  general  purpose  and  intent  so  that  the  public  health, 
safety  and  general  welfare  may  be  secured  and  substantial  justice 
done.  .  .  .'  Apparently  the  board's  contention  is  that  this  section 
gives  them  the  power  to  do  whatever  they  think  is  right  regardless 
of  the  provisions  of  the  statute.  But  it  does  not  grant  any  such 
power.  The  board  cannot  wholly  disregard  the  provisions  of  the 
statute  or  of  the  regulations.  It  can  merely  'vary'  them  to  do  'sub- 
stantial justice*  when  the  'strict  letter'  of  the  provisions  would  work 
hardships.  The  provisions  of  this  section  are  almost  identical  with 
those  of  subdivision  5  of  section  719  of  the  charter  as  added  by 

**  People  ex   rel.   Cotton   v.   Leo,   1 10  Miscellaneous   Reports    ( N.  Y. ) 
1920)  ;  affirmed  104  Appellate  Division  Reports  (N.  Y.)  921  (1920); 
see  also  Altschul  v.  Ludwig,  216  N.  Y.  459  (1916) ;  People  ex  rel.  Hyman 
v.  Leo,  108  Miscellaneous  Reports  (N.  Y.)  39  (1919). 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      575 

chapter  503  of  the  Laws  of  1916.  And  under  that  section  it  has  been 
held  that  the  board  could  not  disregard  the  provisions  of  the  statute. 
People  ex  rel.  Cockcroft  v.  Miller,  187  App.  Div.  704.  And  the  zoning 
resolutions  have  the  force  and  effect  of  a  statute.  Matter  of  Stubbe 
v.  Adamson,  220  N.  Y.  459,  465." 

On  the  other  hand  it  is  not  for  the  court  to  substitute  its 
judgment  with  regard  to  the  proper  solution  of  a  zoning  diffi- 
culty for  that  of  the  board  of  appeals.  In  reversing  the  deci- 
sion of  the  judge  of  an  inferior  court  who  had  forgotten  this 
principle  the  upper  court  said :  56 

"There  is  ...  a  presumption  in  favor  of  the  correctness  of  the 
determination  arrived  at  by  the  board  of  appeals,  and  the  court 
should  not  interfere  with  the  discretion  vested  in  that  body  unless 
that  discretion  has  been  arbitrarily  exercised  or  is  erroneous  in  law. 
The  hearings  before  the  board  of  appeals  are  not  intended  merely  as 
the  first  step  in  an  application  to  the  Supreme  Court  for  a  permit, 
and  the  Supreme  Court  should  not  upon  the  hearing  of  a  writ  of 
certiorari  reverse  a  determination  of  the  board  of  appeals,  even 
though  the  justice  presiding  might  himself  have  arrived  at  a  dif- 
ferent conclusion  if  the  application  had  been  submitted  to  him  in  the 
first  instance,  and  he  had  a  right  to  exercise  his  own  untrammeled 
discretion.  .  .  .  Each  application  must  be  determined  upon  its  own 
merits,  and  persons  aggrieved  by  a  decision  of  the  board  of  appeals 
have  a  right  to  appeal  from  such  decision,  but  such  decisions  in 
nowise  affect  property  holders  in  other  sections  of  the  city  and  in 
nowise  bind  the  board  of  appeals  when  new  applications  are  made 
for  similar  relief.  It  is  true  that  the  law  presumes  that  the  board  of 
appeals  will  act  reasonably  upon  all  applications  brought  before  them, 
and  so  far  as  possible  will  arrive  at  its  decisions  in  all  cases  by  the 
application  of  the  same  rules  and  methods  of  reasoning,  but  each  case 
must  stand  or  fall  upon  its  own  peculiar  facts,  and  even  though  I 
might  believe  that  in  some  instances  the  board  of  appeals  gave  greater 
weight  to  the  interest  of  the  applicant  and  less  weight  to  the  position 
of  other  property  holders  than  it  has  done  in  this  case,  that  fact  would 

M  People  ex  rel.  Ruth  v.  Leo  et  al.,  New  York  Supreme  Court,  New 
York  County,  New  York  Law  Journal,  March  29,  1921,  pp.  2195  and  2196. 
See  also  People  ex  rel.  Facey  v.  Leo,  no  Misc.  516;  230  N.  Y.  602. 

People  ex  rel.  Helvetia  Realty  Co.  v.  Leo,  New  York  Law  Journal, 
June  29,  1920,  p.  1101;  195  App.  Div.  887. 

People  ex  rel.  Sondern  v.  Walsh,  108  Misc.  193. 

Matter  of  West  Side  Mortgage  Co.  of  New  York  v.  Leo,  174  N.  Y. 
Supp.  451. 

People  ex  rel.  Flegenheimer  v.  Leo,  New  York  Law  Journal,  May  8, 
1918;  186  App.  Div.  893. 


576  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

constitute  no  ground  for  a  reversal  of  this  decision  of  the  board  of 
appeals  if  upon  the  facts  proven  here  that  decision  is  not  unreason- 
able as  a  matter  of  law.  It  follows  that  the  writ  must  be  dismissed, 
with  costs." 

Importance  of  Administration. — With  the  growth  and 
ever-increasing  density  of  population  in  our  cities,  the  need  of 
more  detailed  and  stricter  regulation  of  the  interrelated  rights 
of  the  city  dwellers  is  more  and  more  evident.  While  it  is  true 
that  the  failure  to  enact  such  regulations  would  be  a  failure  to 
provide  for  the  well-being  of  the  inhabitants  of  the  city,  it  is 
also  true  that  the  enforcement  of  these  regulations  is  a  growing 
burden  to  certain  classes  in  the  community,  and  an  increasing 
expense  which  ultimately  is  borne  by  the  city  dwellers  as  a 
whole.  It  is  therefore  essential  that  these  ordinances  should 
receive  careful  study,  in  order  that  they  may  be  simplified,  and 
enforced  justly  and  with  the  least  possible  hardship  to  those 
compelled  to  comply  with  them. 

Note  I 
GENERAL  PLANNING  LAWS  IN  THE  UNITED  STATES 

No.  i.    THE  MINNESOTA  PLANNING  LAW* 

SEC.  i.  City  Planning  Department  for  Minneapolis;  Commission 
and  Membership.  That  an  additional  executive  department  in  the 
government  of  cities  of  the  first  class  not  organized  under  section  36 
of  article  IV  of  the  state  constitution  shall  be  created  to  be  known 
as  the  "city  planning  department"  which  shall  be  in  charge  of  a  city 
planning  commission,  consisting  of  nine  persons.  One  shall  be  the 
mayor  of  the  municipality;  the  city  council,  the  school  board,  the 
park  board  and  the  county  board  of  the  county  in  which  the  munici- 
pality is  situated  shall  each  select  one  of  its  own  members,  as  a  mem- 
ber of  the  commission,  in  January  of  each  odd  numbered  year;  and 
four  legal  voters  of  the  municipality  not  members  of  any  of  the  above 
bodies  or  boards  shall  be  appointed  by  the  mayor  with  consent  of  the 
city  council  of  the  municipality.  The  first  appointments  shall  be 
made  as  soon  as  practicable  after  the  passage  of  this  act. 

The  appointed  members  of  the  commission  shall  serve  for  four 
years.  The  first  members  first  appointed  by  the  mayor  shall  so  clas- 
sify themselves  by  lot  that  one  of  the  number  shall  go  out  of  office 
"  1919,  ch.  jyj,  p.  300  (Approved  April  17). 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      577 

at  the  end  of  January  of  the  odd  year  next  after  their  appointment; 
one  at  the  end  of  one  year  thereafter,  and  one  at  the  end  of  two  years 
thereafter;  and  shall  certify  the  result  of  the  classification  to  the  city 
clerk.  Vacancies  for  any  unexpired  term  shall  be  filled  by  appoint- 
ment as  in  the  first  instance. 

The  members  of  the  commission  shall  serve  without  compensa- 
tion, but  the  commission  may  with  the  consent  of  the  city  council 
employ  engineers  or  other  persons  and  incur  such  other  expenses  as 
are  deemed  necessary. 

The  commission  shall  make  and  alter  rules  and  regulations  for  its 
own  organization  and  procedure.  It  shall  make  an  annual  report  to 
the  city  council. 

The  term  "city  council"  means  the  principal  governing  body  of 
the  municipality. 

SEC.  2.  Powers  of  commission.  The  city  planning  commission 
shall  have  power,  except  as  otherwise  provided  by  law : 

1.  To  acquire  or  prepare  a  comprehensive  city  plan  for  the  future 
physical  development  and  improvement  of  the  city,  based  primarily 
upon  public  utility,  convenience  and  general  welfare,  which  plan  shall 
be  known  and  designated  as  the  official  city  plan. 

2.  To  prepare  and  recommend  to  the  proper  officers  of  the  munici- 
pality, specific  plans  for  public  improvements  consistent  with  the  com- 
prehensive plan  for  the  city. 

3.  To  recommend  to  the  city  council  of  the  municipality,  ordi- 
nances regulating  the  height,  location  and  ground  areas  of  buildings 
and  structures,  and  ordinances  providing  for  the  division  of  the  city 
into  districts  or  zones  based  upon  the  height,  ground  areas  and  use 
of  all  buildings  and  structures. 

SEC.  3.  City  council  may  grant  certain  powers.  The  city  coun- 
cil of  the  municipality  may  pass  ordinances  authorizing  the  city  plan- 
ning department  to  administer  and  enforce  ordinances  relative  to 
city  planning. 

SEC.  4.  Commissions  to  approve  public  improvements  contem- 
plated. No  public  improvements  shall  be  authorized  to  be  constructed 
in  the  municipality  until  the  location  and  design  of  the  same  have 
been  approved  by  the  city  planning  commission,  provided  in  case  of 
disapproval  the  commission  shall  communicate  its  reasons  to  the  city 
council,  or  other  governing  body  which  has  control  of  the  construc- 
tion of  the  proposed  improvement;  and  the  majority  vote  of  such 
body  shall  be  sufficient  to  over-rule  such  disapproval.  If  the  reasons 
for  disapproval  are  not  given  to  the  city  council  or  other  governing 
body  within  thirty  days  after  the  plans  for  the  public  improvements 
are  submitted  to  the  city  planning  commission,  said  plan  shall  be 
deemed  to  be  approved  by  the  city  planning  commission,  provided 
that  the  term  "public  improvements"  shall  as  herein  used  include 
"works  of  art"  as  defined  in  chapter  154,  General  Laws  1901. 


578  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

SEC.  5.  Plans,  plats,  etc.,  to  be  submitted  to  commission  for  ap- 
proval  or  rejection.  All  plans,  plats,  or  replats,  of  land  hereafter 
laid  out  in  building  lots  and  streets,  alleys  or  other  portions  of  the 
same  intended  to  be  dedicated  to  public  use,  or  for  the  use  of  pur- 
chasers or  owners  of  lots  fronting  thereon,  or  adjacent  thereto,  and 
located  within  the  city  limits,  shall  be  submitted  to  the  city  planning 
commission  for  its  approval;  and  it  shall  be  unlawful  to  receive  or 
record  such  plans  in  any  public  office  unless  the  same  shall  bear 
thereon,  by  endorsement  or  otherwise,  the  approval  of  the  city  plan- 
ning commission.  The  disapproval  of  such  plan,  plats,  or  replats,  by 
the  city  planning  commission,  shall  be  deemed  a  refusal  by  the  city 
of  the  proposed  dedication  shown  thereon.  The  approval  of  the  com- 
mission shall  be  deemed  an  acceptance  by  the  city  of  the  proposed 
dedication;  but  shall  not  impose  any  duty  upon  the  city  concerning 
the  maintenance  or  improvements  of  any  such  dedicated  parts,  until 
the  proper  authorities  of  the  city  shall  have  made  actual  appropria- 
tions of  the  same  by  entry,  use  or  improvements. 

The  duty  of  the  city  planning  commission  in  accepting  or  reject- 
ing a  plat  shall  be  deemed  legislative  and  discretionary  and  not 
administrative. 

SEC.  6.  This  act  shall  take  effect  and  be  in  force  from  and  after 
the  date  of  its  passage  and  approval. 

No.  2.    THE  NEW  JERSEY  MUNICIPAL  PLAN  AND  ART  COMMISSION 

ACT" 

1.  This  act  may  be  referred  to  as  the  "Municipal  Plan  and  Art 
Commission  Act."    It  shall  apply  to  all  third  class  cities,  fourth  class 
cities,  boroughs,  towns,  townships  and  incorporated  villages  of  this 
State  (and  only  to  those)  which  shall  accept  the  provisions  of  this 
act  as  hereinafter  stated. 

2.  Any  municipality  mentioned  in  section  one  of  this  act  may  by 
a  majority  vote  of  the  mayor  and  common  council,  or  other  similar 
governing  body  of  whatsoever  name  called,  authorize  the  appointment 
of  a  municipal  plan  and  art  commission  for  such  municipality.    Such 
commission  shall  consist  of  six  men,  all  of  whom  shall  reside  in  said 
municipality,  and  one  of  whom  may  be  a  member  of  the  common 
council  or  other  similar  governing  body  of  the  municipality.     The 
commissioners  shall  be  appointed  by  the  mayor  or  other  head  of  the 
municipality,  with  the  advice  and  consent  of  the  council  or  other 
similar  governing  body,  as  the  case  may  be.    Each  commissioner  shall 
be  appointed  for  a  term  of  six  years,  except  that  when  the  commission 
shall  be  first  created,  one  commissioner  shall  be  appointed  for  a  term 
of  six  years,  one  for  a  term  of  five  years,  one  for  a  term  of  four 

"P.  L.  1915,  p.  350,  ch.  188,  as  amended  P.  L.  1920,  p.  414,  ch.  216; 
and  supplemented  P.  L.  1916,  p.  377,  ch.  175. 


years,  one  for  a  term  of  three  years,  one  for  a  term  of  two  years 
and  one  for  a  term  of  one  year,  except  also,  in  case  of  any  vacancy 
occurring  in  said  commission,  the  vacancy  shall  be  filled  for  the 
balance  of  the  unexpired  term  in  each  instance  as  it  arises;  to  the 
end  that  such  commission  shall  be  maintained  as  a  continuing  body 
with  normally  one  commissioner  to  be  nominated  by  the  mayor  and 
confirmed  by  the  council  in  each  year.  In  every  municipality  in  which 
a  municipal  plan  and  art  commission  shall  be  appointed  under  the  pro- 
visions of  this  act,  the  mayor  or  other  executive  head  of  such  munici- 
pality shall  also  be  ex-officio  a  member  of  such  commission  during 
his  term  of  office. 

3.09  After  January  first,  one  thousand  nine  hundred  and  twenty- 
one  in  every  municipality  mentioned  in  section  one  of  this  act  which 
shall  not  have  constituted  a  municipal  plan  and  art  commission  in  the 
manner  prescribed  in  section  two  of  this  act,  legal  voters  residing 
therein  in  number  equaling  or  exceeding  twenty  per  centum  of  the 
votes  cast  in  the  last  preceding  election  for  municipal  officers  may,  by 
petition  addressed  to  the  clerk  of  the  county  in  which  such  munici- 
pality is  located,  call  an  election  of  the  legal  voters  of  such  munici- 
pality to  vote  on  the  question  as  to  whether  such  municipality  shall 
have  a  municipal  plan  and  art  commission  under  the  provisions  of  this 
act.  Such  petition,  with  the  execution  thereof  proven  by  the  oath  of 
one  or  more  witnesses,  shall  be  filed  with  said  county  clerk.  The 
election  shall  be  held  at  the  same  time  as  the  next  succeeding  election 
of  members  of  the  General  Assembly  of  the  State  of  New  Jersey, 
following  the  filing  of  said  petition  and  by  the  same  election  officers. 
The  ballot  shall  read  as  follows: 


Vacancies. 


' 

For  the  appointment  of  a  Municipal  Plan 
Commission  to  serve  without  pay. 

and  Art 

Against  the  appointment  of  a  Municipal  Plan  and  Art 
Commission  to  serve  without  pay. 

Mayor  an 
ex  officio 
member. 


Petition 
for  election 
to  have 
plan  and 
art  com- 
mission. 


When 

election 

held. 


Ballots. 


and  shall  be  printed  on  and  as  a  part  of  the  regular  official  ballot.  If 
a  cross  mark  shall  be  placed  in  the  square  opposite  the  words  "For 
the  appointment  of  a  Municipal  Plan  and  Art  Commission,  to  serve 
without  pay,"  the  vote  shall  be  recorded  as  in  favor  of  the  proposi-  Voting, 
tion.  If  a  cross  mark  shall  be  placed  in  the  square  opposite  the  words 
"Against  the  appointment  of  a  Municipal  Plan  and  Art  Commission, 
to  serve  without  pay,"  the  vote  shall  be  regarded  as  against  the 


1  As  amended,  P.  L.  1920,  p.  414. 


58° 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


proposition.  The  result  of  such  election  shall  be  declared  by  a  cer- 
tificate or  certificates  signed  by  the  election  officers  conducting  such 
election  and  within  three  days  after  such  election,  such  certificate  or 
certificates  shall  be  filed  with  said  county  clerk,  and  a  duplicate  of 
such  certificate  or  certificates  shall,  within  said  three  days,  also  be 
filed  with  the  mayor  or  other  head  of  the  governing  body  of  the 
municipality.  If  the  majority  of  the  votes  cast  at  any  such  election 
on  the  question  of  appointing  a  commission  under  the  provisions  of 
this  act  shall  be  in  favor  of  the  appointment  of  a  municipal  plan  and 
art  commission,  such  municipal  plan  and  art  commission  shall  be 
appointed  by  the  mayor  or  other  head  of  the  municipality,  with  the 
advice  and  consent  of  the  council,  or  other  similar  body  in  such 
municipality,  within  sixty  days  after  the  date  of  such  election. 

4.  Between  December  fifteenth  and  December  thirty-first  in  each 
year,  every  such  commission  appointed  under  the  provisions  of  this 
act  shall  prepare  and  deliver  to  the  mayor  and  council  or  other  head 
of  the   municipality  in  which   such   commission  exists,   an   itemized 
statement  of  the  amount  of  money,  if  any,  estimated  to  be  necessary 
for  the  work  of  said  commission  for  the  coming  calendar  year  from 
January  first  to  December  thirty-first  inclusive,  which  statement  shall 
be  for  the  information  of  the  mayor  and  council  or  other  governing 
body  of  the  municipality,  which  governing  body  in  its  discretion  may 
appropriate  in  the  same  manner  as  other  appropriations  are  made,  the 
amount  of  such  estimate  or  any  portion  thereof,  and  the  amount  so 
appropriated  shall  be  assessed,  levied  and  collected  in  the  same  man- 
ner as  moneys  appropriated  for  other  purposes  in  such  municipality 
shall  be  assessed,  levied  an3  collected. 

5.  All  questions  concerning  the  location  or  acceptance  of  any 
public  place,  playground,  parkway,  street,  avenue,  highway,  common, 
boulevard,  square,  park,  or  of  the  design,  acceptance  or  location  of 
any  bridge,  viaduct,  street  or  park  fixtures  or  structures,  or  any  pub- 
lic building  (including  public  library)  or  works  of  art,  proposed  to 
be  erected  either  wholly  or  partly  by  public  or  private  funds,  for  the 
benefit  of  the  public  in  such  municipality,  shall  be  referred  to  such 
commission  by  the  mayor  and  council  or  other  similar  governing  body 
of  such  municipality  for  consideration  and  report  before  final  action 
shall  be  taken  thereon  .by  the  mayor  and  council  or  other  similar 
governing  body.     If  no  report  shall  be   made   by  said  commission 
within  sixty  days  after  the  receipt  of  such  reference  by  the  com- 
mission, the  mayor  and  council  or  other  similar  governing  body,  may 
proceed  without  a  report,  as  if  this  law  had  not  been  enacted.     If  a 
report  shall  be  made  by  the  commission,  action  by  the  mayor  and 
council  or  other  similar  governing  body  in  harmony  with  the  recom 
mendations  of  such  report,  may  be  taken  by  a  majority  vote,  but  no 
action  by  the   mayor  and  council   or  such   similar   governing  body 
adverse  to  the  recommendations  of  such  report  shall  be  valid,  unless 


Prepare 
plans  for 
systematic 
develop- 
ment of 
munici- 
pality. 


such  action  shall  be  taken  by  a  two-thirds  vote  of  the  mayor  and 
council  or  other  similar  governing  body. 

The  term  "works  of  art"  as  used  in  this  section,  shall  apply  to    Definition, 
and  include  all  monuments,  fountains,  mural  decorations,  sculptures 
and  all  structures  of  a  permanent  character  intended  for  ornament  or 
commemoration. 

This  act  shall  take  effect  immediately. 

[The  above  act  has  been  amended  by  adding  the  following:] 

1.  When  any  municipal  plan  and  art  commission  appointed  under 
the  terms  of  the  act  to  which  this  is  a  supplement  determines  in  its 
judgment  that  it  is  advisable  and  for  the  best  interests  of  the  city, 
borough  or  other  municipality  in  which  it  is  appointed,  to  prepare 
plans  for  the  systematic  and  further  development  and  betterment  of 
such  municipality,  it  shall  then  be  the  duty  of  such  municipal  plan 
and  art  commission  to  prepare  such  plans,  and  in  doing  so  the  said 
municipal  plan  and  art  commission  may  consider  and  investigate  any 
subject  matter  tending  to  the  development  and  betterment  of  such 
municipality  and  make  such  recommendations  as  it  may  deem  advis- 
able concerning  its  government  and  for  any  purpose  make  or  cause 

to  be  made  surveys,  plans  or  maps.     It  shall  have  the  power  and    Assistants, 
authority  to  employ  experts  and  clerks  and  to  pay  for  their  services, 
and  to  pay  for  such  other  expenses  as  such  commission  may  lawfully 
incur  under  the  powers  hereby  granted,  including  the  necessary  dis- 
bursements incurred  by  its  members  in  the  performance  of  their  duties 
as  members  of  said  commission,  provided  such  disbursements  shall 
have  been  authorized  by  such  commission;  and  further  provided,  that    Proviso. 
the  total  amount  so  expended  for  all  purposes  in  any  one  year  shall 
not  exceed  the  appropriation  for  such  year  as  heretofore  provided. 

2.  This  act  shall  take  effect  immediately. 

No.  j.    THE  NEW  YORK  CITY  AND  VILLAGE  PLANNING  LAW* 

GENERAL    MUNICIPAL  LAW,   ARTICLE    I2A.      CITY    AND   VILLAGE 
PLANNING   COMMISSIONS 

SEC.  234.  Creation,  appointment  and  qualifications. 

235.  Officers,  expenses  and  assistance. 

236.  General  powers. 

237.  Maps   and   recommendations. 

238.  Private  streets. 

239.  Rules. 

239-3.     Construction  of  article. 

234.  Creation,  appointment  and  qualifications.  Each  city 
and  incorporated  village  is  hereby  authorized  and  empowered  to 
create  a  commission  to  be  known  as  the  city  or  village  planning  com- 

80 1913,  ch.  699,  as  amended  1920,  ch.  377. 


582  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

mission.  Such  commission  shall  be  so  created  in  incorporated  villages 
by  resolution  of  the  trustees,  in  cities  by  ordinance  of  the  common 
council,  except  that  in  cities  of  the  first  class,  having  more  than  a 
million  inhabitants,  it  shall  be  by  resolution  of  the  board  of  estimate 
and  apportionment  or  other  similar  local  authority.  In  cities  of  the 
first  class  such  commission  shall  consist  of  not  more  than  eleven,  in 
cities  of  the  second  class  of  not  more  than  nine,  in  cities  of  the  third 
class  and  incorporated  villages  of  not  more  than  seven  members. 
Such  ordinance  or  resolution  shall  specify  the  public  officer  or  body 
of  said  municipality,  that  shall  appoint  such  commissioners,  and  shall 
provide  that  the  appointment  of  as  nearly  as  possible  one  third  of 
them  shall  be  for  a  term  of  one  year,  one  third  for  a  term  of  two 
years,  and  one  third  for  a  term  of  three  years;  and  that  at  the  expira- 
tion of  such  terms,  the  terms  of  office  of  their  successors  shall  be 
three  years;  so  that  the  term  of  office  of  one  third  of  such  commis- 
sioners, as  nearly  as  possible,  shall  expire  each  year.  All  appoint- 
ments to  fill  vacancies  shall  be  for  the  unexpired  term.  Not  more  than 
one  third  of  the  members  of  said  commission  shall  hold  any  other 
public  office  in  said  city  or  village.  In  a  county  containing  a  popula- 
tion of  over  three  hundred  thousand  and  adjoining  a  city  of  the  first 
class  one  of  the  members  of  such  commission  may  reside  outside  of 
such  village. 

SEC.  235.  Officers,  expenses  and  assistance.  The  commission 
shall  elect  annually  a  chairman  from  its  own  members.  It  shall  have 
the  power  and  authority  to  employ  experts,  clerks,  and  a  secretary, 
and  to  pay  for  their  services  and  such  other  expenses  as  may  be  nec- 
essary and  proper,  not  exceeding,  in  all,  the  annual  appropriation 
that  may  be  made  by  said  city  or  village  for  said  commission.  The 
body  creating  the  commission  shall  by  ordinance  or  resolution  pro- 
vide what  compensation,  if  any,  each  of  such  commissioners  shall 
receive  for  his  services  as  such  commissioner.  Each  city  and  incor- 
porated village  is  hereby  authorized  and  empowered  to  make  such 
appropriation  as  it  may  see  fit  for  such  expenses  and  compensation, 
such  appropriations  to  be  made  by  those  officers  or  bodies  in  such 
city  or  village  having  charge  of  the  appropriation  of  the  public  funds. 

SEC.  236.  General  powers.  The  body  creating  such  planning 
commission  may,  at  any  time,  by  ordinance  or  resolution,  provide  that 
the  following  matters,  or  any  one  or  more  of  them,  shall  be  referred 
for  report  thereon,  to  such  commission  by  the  board,  commission, 
commissioner  or  other  public  officer  or  officers  of  said  city  or  village 
which  is  the  final  authority  thereon  before  final  action  thereon  by 
such  authority :  the  adoption  of  any  map  or  plan  of  said  city  or 
incorporated  village,  or  part  thereof,  including  drainage  and  sewer  or 
water  system  plans  or  maps,  and  plans  or  maps  for  any  public  water 
front,  or  marginal  street,  or  public  structure  upon,  in  or  in  connec- 
tion with  such  front  or  street,  or  for  any  dredging,  filling  or  fixing 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES       583 

of  lines  with  relation  to  said  front;  any  change  of  any  such  maps  or 
plans ;  the  location  of  any  public  structure  upon,  in  or  in  connection 
with,  or  fixing  lines  with  relation  to  said  front;  the  location  of  any 
public  building,  bridge,  statue  or  monument,  highway,  park,  park- 
way, square,  playground  or  recreation  ground,  or  public  open  place 
of  said  city  or  village.  In  default  of  any  such  ordinance  or  resolu- 
tion all  of  said  matters  shall  be  so  referred  to  said  planning  com- 
mission. 

The  body  creating  such  planning  commission  may,  at  any  time, 
by  ordinance  or  resolution,  fix  the  time  within  which  such  planning 
commission  shall  report  upon  any  matter  or  class  of  matters  to  be 
referred  to  it,  with  or  without  the  further  provision  that  in  default 
of  report  within  the  time  so  fixed,  the  planning  commission  shall  for- 
feit the  right  further  to  suspend  action,  as  aforesaid  with  regard  to 
the  particular  matter  upon  which  it  has  so  defaulted.  In  default  of 
any  such  ordinance  or  resolution,  no  such  action  shall  be  taken  until 
such  report  is  so  received,  and  no  adoption,  change,  fixing  or  location 
as  aforesaid  by  said  final  authority,  prior  thereto,  shall  be  valid.  No 
ordinance  or  resolution  shall  deprive  said  planning  commission  of 
its  right  or  relieve  it  of  its  duty,  to  report,  at  such  time  as  it  deems 
proper  upon  any  matter  at  any  time  referred  to  it. 

This  section  shall  not  be  construed  as  intended  to  limit  or  impair 
the  power  of  any  art  commission,  park  commission  or  commissioner, 
now  or  hereafter  existing  by  virtue  of  any  provision  of  law,  to  refuse 
consent  to  the  acceptance  by  any  municipality  of  the  gift  of  any  work 
of  art  to  said  municipality,  without  reference  of  the  matter,  by 
reason  of  its  proposed  location  or  otherwise,  to  said  planning  com- 
mission. Nor  shall  this  section  be  construed  as  intended  to  limit  or 
impair  any  other  power  of  any  such  art  commission  or  affect  the 
same,  except  in  so  far  as  it  provides  for  reference  or  report,  or  both, 
on  any  matter  before  final  action  thereon  by  said  art  commission. 

SEC.  237.  Maps  and  recommendations.  Such  planning  commis- 
sion may  cause  to  be  made  a  map  or  maps  of  said  city  or  village  or 
any  portion  thereof,  or  of  any  land  outside  the  limits  of  said  city  or 
village  so  near  or  so  related  thereto  that  in  the  opinion  of  said  plan- 
ning commission  it  should  be  so  mapped.  Such  plans  may  show  not 
only  such  matters  as  by  law  have  been  or  may  be  referred  to  the 
planning  commission,  but  also  any  and  all  matters  and  things  with 
relation  to  the  plan  of  said  city  or  village  which  to  said  planning 
commission  seem  necessary  and  proper,  including  recommendations 
and  changes  suggested  by  it;  and  any  report  at  any  time  made,  may 
include  any  of  the  above.  Such  planning  commission  may  obtain 
expert  assistance  in  the  making  of  any  such  maps  or  reports,  or  in 
the  investigations  necessary  and  proper  with  relation  thereto. 

SEC.  238.  Private  streets.  The  body  creating  such  planning 
commission  may  at  any  time,  by  ordinance  or  resolution  provide  that 


584  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

no  plan,  plot  or  description,  showing  the  layout  of  any  highway  or 
street  upon  private  property,  or  of  building  lots  in  connection  with 
or  in  relation  to  such  highway  or  street  shall,  within  the  limits  of 
any  municipality  having  a  planning  commission,  as  aforesaid,  be 
received  for  record  in  the  office  of  the  clerk  of  the  county  where  such 
real  property  is  situated,  until  a  copy  of  said  plan,  plot  or  description 
has  been  filed  with  said  commission  and  it  has  certified,  with  relation 
thereto,  its  approval  thereof.  Such  certificate  shall  be  recorded  as  a 
part  of  the  record  of  said  original  instrument  containing  said  plan, 
plot  or  description.  No  such  street  or  highway  which  has  not  re- 
ceived the  approval  of  the  planning  commission  shall  be  accepted  by 
said  city  or  village  until  the  matter  has  been  referred  to  such  com- 
mission under  the  provision  of  section  two  hundred  and  thirty-six  of 
this  article.  But  if  any  such  street  is  plotted  or  laid  out  in  accord- 
ance with  the  map  of  said  municipality,  adopted  according  to  law. 
then  it  shall  not  be  necessary  to  file  such  copy,  or  obtain  or  record 
such  certificate. 

SEC.  239.  Rules.  Such  commission  may  make  rules  not  contrary 
to  law,  to  govern  its  action  in  carrying  out  the  provisions  of  this 
article. 

SEC.  239-3.  Construction  of  article.  This  article  shall  be  con- 
strued as  the  grant  of  additional  power  and  authority  to  cities  and 
incorporated  villages,  and  not  as  intended  to  limit  or  impair  any 
existing  power  or  authority  of  any  city  or  village. 

Any  city  or  incorporated  village  in  order  to  appoint  a  planning 
commission  under  this  article  shall  recite,  in  the  ordinance  or  resolu- 
tion so  creating  the  commission,  the  fact  that  it  is  created  under  this 
article. 

No.  4.    THE  NEW  YORK  CITY  ART  COMMISSION  LAW 

CHARTER,  CH.   XII,  TITLE  2 
ART   COMMISSION 

SEC.  633.  Art  commission;  how  constituted. 

634.  Members  of  commission;  how  chosen;  vacancies. 

635.  Officers. 

636.  Offices  to  be  provided ;  expenses,  how  met. 

637.  All  works  of  art  to  be  submitted  to  and  approved  by 

the  commission. 

638.  Time  for  decision  limited. 

639.  Removal  or  relocation  of  works  of  art;  duty  of  com- 

mission. 

SEC.  633.  Art  Commission;  how  constituted.  There  shall  be  an 
art  commission  for  the  city  of  New  York,  composed  as  follows: 


PLANNING  ADMINISTRATION  IN  THE  UNITETJ  STATES      5»5 

1.  The  mayor  of  the  city  of  New  York,  ex  officio. 

2.  The    president    of    the    Metropolitan    museum    of    art,    ex 
officig. 

3.  The  president  of  the  New  York  public  library  (Astor,  Lenox 
and  Tilden  Foundation),  ex  officio. 

4.  The  .president  of  the  Brooklyn  institute  of  arts  and  sciences, 
ex  officio. 

One  painter,  one  sculptor  and  one  architect,  all  residents  of  The 
City  of  New  York;  and  three  other  residents  of  said  city,  none  of 
whom  shall  be  a  painter,  sculptor  or  architect  or  member  of  any  other 
profession  in  the  fine  arts.  All  of  the  six  last  mentioned  shall  be 
appointed  by  the  mayor  from  a  list,  of  not  less  than  three  times  the 
number  to  be  appointed,  proposed  by  the  fine  arts  federation  of  New 
York.  In  all  matters  of  which  such  commission  takes  cognizance 
pertaining  to  work  under  the  special  charge  of  a  commissioner  or 
department,  the  commissioner  having  such  special  charge  shall  act 
as  a  member  of  the  commission.  Each  of  the  aforesaid  presidents 
may  appoint  a  trustee  of  the  institution  or  corporation  of  which  he 
is  president  to  serve  in  his  place  as  ex  officio  member  of  said  com- 
mission. Such  appointment  shall  be  in  writing  and  shall  be  revocable 
at  any  time  by  such  president.  It  shall  terminate  whenever  he  ceases 
to  be  president.  Until  the  appointment  be  so  revoked  or  terminated, 
any  trustee  so  appointed  shall  be  an  ex  officio  member  of  said  com- 
mission with  like  powers  and  duties  as  the  president  who  has 
appointed  him. 

SEC.  634.  Members  of  commission-;  how  chosen;  vacancies. 
The  painter,  sculptor  and  architect,  members  of  the  commission,  shall 
choose  by  lot  one,  two  and  three  year  terms  of  office ;  the  three  other 
appointed  members  of  the  commission  shall  also  choose  by  lot  one, 
two  and  three  year  terms  of  office,  and  the  appointment  of  their 
successors,  after  the  expiration  of  the  first  year  of  this  commission, 
shall  be  for  a  term  of  three  years.  All  appointments  to  fill  vacancies 
shall  be  for  the  unexpired  term.  In  case  any  vacancy  shall  occur 
in  the  commission,  by  reason  of  death,  resignation,  incapacity,  re- 
fusal to  serve,  or  otherwise,  the  vacancy  shall  be  filled  by  appoint- 
ment, as  provided  in  section  six  hundred  and  thirty-three  of  this  act. 
In  case  the  fine  arts  federation  shall  fail  to  present  a  list  of  nomi- 
nees as  aforesaid  within  three  months  from  the  time  when  any 
appointment  is  to  be  made,  the  Mayor  shall  appoint  without  such 
nomination. 

SEC.  635.  Officers.  The  commission  shall  serve  without  compen- 
sation as  such,  and  shall  elect  a  president,  vice-president  and  secre- 
tary from  its  own  members,  whose  terms  of  office  shall  be  for 
one  year  and  until  their  successors  are  elected  and  have  qualified. 
The  commission  shall  have  power  to  adopt  its  own  rules  of  pro- 
cedure. Five  commissioners  shall  constitute  a  quorum. 


586  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

SEC.  636.  Offices  to  be  provided;  expenses,  how  met.  Suitable 
offices  shall  be  provided  for  the  commission  by  the  board  of  estimate 
and  apportionment.  The  expenses  of  the  commission  shall  be  paid 
by  the  city;  and  the  amount  of  the  same  shall  be  fixed  annually 
by  the  board  of  estimate  and  apportionment  and  the  board  of  alder- 
men. 

SEC.  637.  All  works  of  art  to  be  submitted  to  and  approved 
by  the  commission.  Hereafter  no  work  of  art  shall  become  the  prop- 
erty of  the  city  of  New  York,  by  purchase,  gift  or  otherwise,  unless 
such  work  of  art  or  a  design  of  the  same,  together  with  the  proposed 
location  of  such  work  of  art,  shall  first  have  been  submitted  to  and 
approved  by  the  commission;  nor  shall  such  work  of  art  until  so 
approved  be  contracted  for,  erected  or  placed  in  or  upon,  or  allowed 
to  extend  over  or  upon  any  street,  avenue,  square,  common,  park, 
public  building,  or  other  public  place  belonging  to  the  city.  The 
commission  may,  when  they  deem  proper,  also  require  a  complete 
model  of  the  proposed  work  of  art  to  be  submitted.  The  term  "work 
of  art"  as  used  in  this  title  shall  apply  to  and  include  all  paintings, 
mural  decorations,  stained  glass,  statues,  bas  reliefs  or  other  sculp- 
tures; monuments,  fountains,  arches,  or  other  structures  of  a  perma- 
nent character  intended  for  ornament  or  commemoration.  No  exist- 
ing work  of  art  in  the  possession  of  the  city  shall  be  removed,  re- 
located or  altered  in  any  way  without  the  similar  approval  of  the 
commission,  except  as  provided  in  section  six  hundred  and  thirty-nine 
of  this  act.  The  commission  shall  act  in  a  similar  capacity,  with 
similar  powers,  in  respect  of  the  designs  of  buildings,  bridges,  ap- 
proaches, gates,  fences,  lamps  or  other  structures  erected  or  to  be 
erected  upon  land  belonging  to  the  city,  and  in  respect  to  the  lines, 
grades  and  plotting  of  public  ways  and  grounds  and  in  respect  of 
arches,  bridges,  structures  and  approaches  which  are  the  property  of 
any  corporation  or  private  individual,  and  which  shall  extend  over  or 
upon  any  street,  avenue,  highway,  park  or  public  place  belonging  to 
the  city,  and  said  commission  shall  so  act  and  its  approval  shall  be  re- 
quired for  every  such  structure  which  shall  hereafter  be  erected  or 
contracted  for;  except  that  in  case  of  any  such  structure  which  shall 
hereafter  be  erected  or  contracted  for  at  a  total  expense  not  exceed- 
ing two  hundred  and  fifty  thousand  dollars,  the  approval  of  said  com- 
mission shall  not  be  required,  if  the  mayor  or  the  board  of  aldermen 
shall  request  said  commission  not  to  act.  But  this  section  shall  not  be 
construed  as  intended  to  impair  the  power  of  the  park  board  to 
refuse  its  consent  to  the  erection  or  acceptance  of  public  momum-nts 
or  memorials  or  other  works  of  any  sort  within  any  park,  square 
or  public  place  in  the  city. 

SEC.  638.  Time  for  decision  limited.  If  the  commission  shall 
fail  to  decide  upon  any  matter  submitted  to  it  within  sixty  days  after 
such  submission,  its  decision  shall  be  deemed  unnecessary. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      587 

SEC.  639.  Removal  or  relocation  of  works  of  art;  duty  of  com- 
mission. In  case  the  immediate  removal  or  relocation  of  any  exist- 
ing work  of  art  shall  be  deemed  necessary  by  the  mayor,  the  com- 
mission shall  within  forty-eight  hours  after  notice  from  him  approve 
or  disapprove  of  such  removal  or  relocation,  and  in  case  of  their 
failure  so  to  act  within  forty-eight  hours  after  the  receipt  of  such 
notice,  they  shall  be  deemed  to  have  approved  of  the  same. 

No.  5.    PLANNING  PROVISIONS  OF  THE  CHARTER  AND  ORDINANCE 
OF  CLEVELAND,  OHIO 

CHARTER  OF  THE  CITY  OF  CLEVELAND 

SEC.  77.  There  shall  be  a  city  plan  commission  to  be  appointed 
by  the  mayor  with  power  to  control,  in  the  manner  provided  by  ordi- 
nance, the  design  and  location  of  works  of  art  which  are,  or  may 
become,  the  property  of  the  city;  the  plan,  design  and  location  of 
public  buildings,  harbors,  bridges,  viaducts,  street  fixtures  and  other 
structures  and  appurtenances;  the  removal,  relocation  and  alteration 
of  any  such  works  belonging  to  the  city;  the  location,  extension  and 
platting  of  streets,  parks  and  other  public  places,  and  of  new  areas; 
and  the  preparation  of  plans  for  the  future  physical  development 
and  improvement  of  the  city. 

Ordinance  of  City  of  Cleveland 

SEC.  4.  Hereafter  no  public  building,  harbor,  bridge,  viaduct, 
street  fixture,  or  other  structure  or  appurtenance  shall  be  located,  con- 
structed, erected,  renewed,  relocated,  or  altered  until  and  unless  such 
plan,  design  or  location  shall  have  been  submitted  to  and  approved 
by  the  commission;  and  no  such  work  when  completed  shall  be  ac- 
cepted by  the  city  until  and  unless  it  shall  have  been  approved  by 
the  commission  as  provided  in  sec.  77  of  the  City  Charter. 


No.  6.    THE  PENNSYLVANIA  GENERAL  PLAN  ACT" 

SEC.  9.     Every  municipal  corporation  shall  have  power  to  open,    Power  to 
widen,  straighten,  or  extend  streets  or  alleys,  or  parts  thereof,  within    °t^"'tsetc'' 
its  limits,  and  to  vacate  streets  or  alleys,  or  parts  thereof.  .  .  .  The 
widening  or  straightening  ordinances  shall  fix  the  new  line  or  lines, 
and    may     require    that    thereafter     no    owner    or    builder    shall 
erect  any  new  building  or  rebuild  or  alter  the  front  of  any  building 
already  erected  without  making  it  conform  to  the  new  lines,  in  which    Wlthm 

n  1891,  May  16 ;  P.  L.  75,  as  amended  by  1913,  July  22,  P.  L.  902,  and 
1921,  May  17,  P.  L.  844.  See  also  1871,  June  6,  P.  L.  1353,  which  affects 
only  Philadelphia. 


Buildings 
must  be 
built 


new  lines. 


588  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

case  the  landowner's  right  of  action  shall  accrue  only  when  the  said 
municipal  corporation  actually  enters  on  and  occupies  the  land  within 
the  said  lines,  or  the  said  building  is  located  or  relocated  to  con- 
form to  said  lines.  .  .  . 

SEC.  12.  Every  municipality  shall  have  a  general  plan  of  its 
streets  and  alleys,  parks  and  playgrounds,  including  those  which  have 
been  or  may  be  laid  out,  but  not  opened;  which  plan  shall  be  filed 
in  the  office  of  the  engineer  or  other  proper  office  of  the  municipality, 
and  all  subdivisions  of  property  thereafter  made  shall  conform  there- 
to. The  location  of  streets  or  alleys,  or  parts  thereof,  or  parks  or 
playgrounds,  laid  out  and  confirmed  by  authority  of  councils,  shall 
not  afterwards  be  altered  without  the  consent  of  councils ;  and  no  map 
or  plot  of  streets  or  alleys  or  parks  or  playgrounds,  shall  be  entered 
or  recorded  in  any  public  office  of  the  county  in  which  said  munici- 
pality is  situated  until  approved  by  councils.  No  person  shall  here- 
after be  entitled  to  recover  any  damages  for  the  taking  for  public 
use  of  any  buildings  or  improvements  of  any  kind  which  may  be 
placed  or  constructed  upon  or  within  the  lines  of  any  located  street 
or  alley,  or  park  or  playground,  after  the  same  shall  have  been  lo- 
cated or  ordained  by  councils. 

No.  7.    PLANNING  PROVISION  OF  PENNSYLVANIA  STATE  HIGHWAY 

ACT" 

SEC.  8.  The  State  Highway  Commissioner  shall  also  have  power, 
with  the  approval  of  the  Governor,  to  establish  the  width  and  lines 
of  any  State  Highway  before  or  after  the  construction,  reconstruc- 
tion, or  improvement  of  the  same,  not,  however,  exceeding  the  maxi- 
mum width  fixed  by  law  for  public  roads.  Whenever  the  State  High- 
way Commissioner  shall  establish  the  width  and  lines  of  any  such 
State  Highway,  he  shall  cause  a  description  and  plan  thereof  to  be 
made,  showing  the  center  line  of  said  highway  and  the  established 
width  thereof,  and  shall  attach  thereto  his  acknowledgment.  There- 
upon such  description,  plan,  and  acknowledgment  shall  be  recorded 
in  the  office  of  the  recorder  of  deeds  of  the  proper  county,  in  a  sepa- 
rate book  kept  for  such  purpose,  which  shall  be  furnished  to  the 
recorder  of  deeds  by  the  county  commissioners  at  the  expense  of  the 
county. 

No  owner  or  occupier  of  lands,  buildings,  or  improvements  shall 
erect  any  building  or  make  any  improvements  within  the  limits  of 
any  State  Highway  the  width  and  lines  of  which  have  been  estab- 
lished and  recorded  as  provided  in  this  section,  and,  if  any  such 
erection  or  improvement  shall  be  made,  no  allowance  shall  be  had 
therefor  by  the  assessment  of  damages. 

*Penn.  Laws  1921,  April  6,  P.  L.  107,  amending  1911,  M*y  3',  p-  L- 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES       589 


No.  8."    THE  PENNSYLVANIA  PLANNING  ACT  FOR  THIRD  CLASS 
CITIES;  THE  PROVISION  FOR  APPROVAL  OF  PLANS 

SEC.  5.  All  plans,  plots,  or  re-plots  of  lands  laid  out  in  building 
lots,  and  the  streets,  alleys,  or  other  portions  of  the  same  intended 
to  be  dedicated  to  public  use,  or  for  the  use  of  purchasers  or  owners 
of  lots  fronting  thereon  or  adjacent  thereto,  and  located  within  the 
city  limits  of  a  city  of  the  third  class,  or  for  a  distance  of  three  miles 
outside  thereof,  shall  be  submitted  to  the  City  Planning  Commission 
and  approved  by  it  before  it  shall  be  recorded.  And  it  shall  be  un- 
lawful to  receive  or  record  such  plan  in  any  public  office  unless  the 
same  shall  bear  thereon,  by  endorsement  or  otherwise,  the  approval 
of  the  City  Planning  Commission.  The  disapproval  of  any  such  plans 
by  the  City  Planning  Commission  shall  be  deemed  a  refusal  of  the 
proposed  dedication  shown  thereon.  The  approval  of  the  commission 
shall  be  deemed  an  acceptance  of  the  proposed  dedication;  but  shall 
not  impose  any  duty  upon  the  city  concerning  the  maintenance  or  im- 
provement of  any  such  dedicated  parts,  until  the  proper  authorities 
of  the  city  shall  have  made  actual  appropriation  of  the  same  by  entry, 
use,  or  improvement.  No  sewer,  water,  or  gas-main,  or  pipes,  or 
other  improvement,  shall  be  voted  or  made  within  the  area  under  the 
jurisdiction  of  said  commission,  for  the  use  of  any  such  purchasers 
or  owners;  nor  shall  any  permit  for  connection  with  or  other  use 
of  any  such  improvement  existing,  or  for  any  other  reason  made,  be 
given  to  any  such  purchasers  or  owners  until  such  plan  is  so  approved. 
Where  the  jurisdictional  limit  of  three  miles  outside  of  the  city 
limits,  as  provided  in  this  section,  may  conflict  with  the  zone  of  simi- 
lar character  connected  with  another  city  of  the  third  class,  the  juris- 
diction of  said  commission  shall  extend  only  to  the  point  equidistant 
between  the  city  limits  and  the  limits  of  said  municipality. 


Plans, 
plots,  etc. 


Dedication! 


Recording. 


Disap- 
proval. 

Approval. 


Sewers, 
water,  or 
gas-main. 


Jurisdic- 
tional 
limit. 


No.  9.    THE  PROPOSED   MASSACHUSETTS   METROPOLITAN   PLANNING 

ACT 

In  1911,  Massachusetts  (Acts  and  Resolves,  ch.  84)  caused  an 
investigation  to  be  made  as  to  the  desirability  of  appointing  a  plan- 
ning commission  for  the  Metropolitan  District  of  Boston  and  its 
vicinity,  a  report  of  which  was  made  to  the  legislature  of  the  state 
in  1912  (House  Report  No.  1615).  That  report  recommended  the 


"1913,  July  16;  P.  L.  752,  being  Pa.  St.  1920,  sec.  4383.  Similar  laws 
in  other  states  are  supplemented  in  a  few  cases  by  statutes  requiring  the 
record  of  plats.  A  similar  act  1911,  June  10,  P.  L.  872,  was  amended 
in  1921,  May  17,  P.  L.  841,  by  inserting  at  the  beginning  of  the  section, 
immediately  after  sec.  5  the  words  "all  plans  of  streets  for  public  use, 
and." 


590  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

appointment  of  such  a  commission  and  transmitted  with  its  report 
a  draft  of  an  act  (never  passed)  for  that  purpose,  which  is  as  follows: 

SEC.  i.  The  governor,  by  and  with  the  consent  of  the  council, 
shall  appoint  three  persons,  and  the  mayor  of  Boston  shall  appoint 
two  persons,  who  shall  constitute  a  board  to  be  known  as  the  Metro- 
politan Planning  Board.  The  members  of  said  board  shall  hold  office 
for  terms  of  five  years  each  beginning  with  the  first  Monday  in  May 
in  the  year  nineteen  hundred  and  twelve.  Upon  the  expiration  of 
the  terms  of  the  members  so  first  appointed  the  governor  shall  appoint 
three  members,  one  to  serve  for  five  years,  one  for  three  years  and 
one  for  one  year,  and  the  mayor  shall  appoint  two  members,  one  to 
serve  for  four  years  and  one  for  two  years.  Thereafter  the  respec- 
tive appointments  by  the  governor  and  mayor  shall  be  for  terms  of 
five  years.  The  governor  shall  appoint  the  chairman  of  the  said  board. 

SEC.  2.  The  jurisdiction  and  powers  of  said  board  shall  extend 
to  and  may  be  exercised  in  the  cities  of  Boston,  Cambridge,  Chelsea, 
Everett,  Lynn,  Maiden,  Medford,  Melrose,  Newton,  Quincy,  Somer- 
ville,  Waltham,  and  Woburn,  and  in  the  towns  of  Arlington,  Bel- 
mont,  Braintree,  Brookline,  Canton,  Cohasset,  Dedham,  Dover,  Hing- 
ham,  Hull,  Milton,  Nahant,  Needham,  Revere,  Saugus,  Stoneham, 
Swampscott,  Wakefield,  Watertown,  Wellesley,  Weston,  Westwood, 
Weymouth,  Winchester,  and  Winthrop,  and  the  said  cities  and  towns 
together  with  any  others  that  may  be  included  by  subsequent  legisla- 
tion shall  constitute  the  metropolitan  district  within  the  meaning  of 
this  act. 

SEC.  3.  Except  as  hereinafter  expressly  provided  nothing  in  this 
act  shall  be  construed  as  affecting  the  powers  now  vested  by  law  in 
any  public  authority. 

SEC.  4.     Duties  and  powers  of  the  said  board: 

A.  It  shall  be  the  duty  of  the  said  board  to  make  or  obtain  surveys 
of  the  metropolitan  district  as  herein  defined,  and  for  the  purpose  of 
making  such  surveys  it  shall  have  the  right  to  do  all  reasonable  and 
necessary  acts. 

B.  It  shall  be  the  duty  of  the  said  board  to  make  a  comprehensive 
plan  or  series  of  plans  for  the  present  and  probable  future  require- 
ments of  the  metropolitan  district  in  respect  to  a  system  of  traffic 
thoroughfares  and  other  main  highways,  transportation  facilities  of 
every  sort  suitably  coordinated,  sites  for  public  buildings,  parks,  play- 
grounds and  other  public  uses,  and  any  and  all  public  improvements 
tending  to  the  advantage  of  the  metropolitan  district  as  a  place  of 
business  and  of  residence. 

C.  It  shall  be  the  duty  of  the  said  board  to  study  and,  in  its  dis- 
cretion, it  may  recommend  such  legislation  applicable  to  the  metro- 
politan district  as  will  facilitate  the  prevention  and  relief  of  ca- 
tion of  population  and  of  traffic,  the  better  control  of  fire  hazard,  the 
better  distribution  of  areas  and  of  buildings  for  the  purposes  of  resi- 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      591 

dence,  manufacturing,  trade  and  transportation,  the  preservation  of 
the  natural  and  historic  features  of  the  district,  the  beautifying 
thereof,  the  coordination  of  transportation  facilities,  the  best  method 
of  financing  and  assessing  the  cost  of  public  improvements  or  any 
other  matter  relating  to  a  coordinated  civic  development  within  the 
said  metropolitan  district. 

D.  It  shall  be  the  duty  of  the  said  board  to  examine  and  make 
public  reports  upon  all  plans  directly  affecting  the  metropolitan  dis- 
trict or  more  than  one  city  or  town  therein  made  under  authority  of 
law,  and  for  the  purpose  of  such  examination  it  shall  be  the  duty  of 
any  existing  public  authority  before  making  any  contract  or  agree- 
ment for  the  execution  of  plans  of  the  character  aforesaid  for  any 
public  improvements  within  the  metropolitan  district  to  inform  the 
Metropolitan  Planning  Board  as  to  such  plans  and  give  the  said  board 
reasonable  opportunity  for  examining  the  same.     The  said  reports 
may  specifically  approve  or  disapprove  of  said  plans  in  whole  or  in 
part  as  the  said  board  may  by  its  examination  determine,  and  shall 
state  the  reasons  for  such  approval  or  disapproval.     Wherever  it  is 
possible  and  desirable  to  effect  a  coordination  of  the  plans  for  im- 
provements  within  the    said   metropolitan   district   of   two    or   more 
agencies,  whether  now  existing  or  hereafter  created  and  with  local 
or  general  jurisdiction,  it  shall  be  the  duty  of  the  said  board  to  seek 
to  effect  such  a  coordination. 

E.  If  in  the  opinion  of  the  said  board  any  plan  for  a  public  im- 
provement proposed  for  execution  by  the  legally  constituted  authority 
in  any  county,  city  or  town  within  the  district  conflicts  with  some 
existing  or  proposed  public  improvement  of  metropolitan  character 
the  board  shall  so  inform  the  executive  of  the  said  county,  city  or 
town,  whereupon  the   said  county,  city  or  town  may  abandon  the 
proposed  improvement,  or  shall  execute  the  same  in  accordance  with 
the  plan  of  the  said  Metropolitan  Planning  Board,  or  shall  postpone 
action  upon  the  question  of  execution  for  not  less  than  one  year, 
after  which  such  lawful  action  may  be  taken  as  the  said  county,  city 
or  town  through  its  legally  constituted  authority  may  deem  expedient. 

F.  The  said  board  shall  have  the  power  when  so   requested  by 
the  authorities  of  any  county,  city  or  town  within  the  said  metro- 
politan  district   to   furnish   assistance    for  the   making  of   plans   or 
specifications  or  the  supervision  of  the  execution  of  public  works  at 
the  cost  of  such  assistance  or  supervision. 

G.  The  board  may  place  the  question  of  the  execution  of  any 
given  metropolitan  improvement  within  the  limits  of  the  metropolitan 
district  before  the  government  of  each  political  unit  in  which  such 
improvement  is  physically  situated,  and  before  any  succeeding  gov- 
ernment in  its  discretion.    It  shall  present  estimates  of  cost  with  any 
plans  for  improvements  whenever  the  question  of  execution  is  placed 
before  public  authorities.     Every  proposed  improvement  or  any  part 


592  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

thereof  when  accepted  by  the  government  of  the  municipal  unit  in 
which  it  is  situated,  or  by  any  other  constituted  authority  having 
power  to  make  such  improvement,  or  part  thereof,  shall  be  executed 
by  such  government  or  authority  whether  now  existing  or  hereafter 
created. 

SEC.  5.  The  approval  by  the  board  of  any  plan  or  plans  accepted 
by  municipal  authorities  or  boards  of  county  commissioners  or  sub- 
mitted to  said  Metropolitan  Planning  Board  as  hereinbefore  provided, 
may  in  set  terms  designate  and  classify  the  improvements  therein 
shown  or  any  portion  of  them  as  ordinary  or  extraordinary  metro- 
politan improvements.  The  cost  of  ordinary  metropolitan  improve- 
ments executed  under  the  provisions  of  this  act  shall  be  paid  as  fol- 
lows :  sixty-five  per  cent  by  the  municipality  or  municipalities  in 
which  the  improvement  is  physically  situated ;  twenty-five  per  cent 
by  the  remaining  cities  and  towns  constituting  the  said  district  in 
proportions  determined  by  the  commission  appointed  by  the  supreme 
judicial  court  as  hereinafter  provided  and  ten  per  cent  by  the  com- 
monwealth. The  cost  of  extraordinary  metropolitan  improvements 
executed  under  the  provisions  of  this  act  shall  be  paid  as  follows : 
such  proportion  thereof,  not  exceeding  sixty-five  per  cent,  as  may 
be  determined  by  the  said  commission  appointed  by  the  supreme 
judicial  court  as  aforesaid,  by  the  municipality  or  municipalities  in 
which  the  improvement  is  physically  situated;  such  amount,  not  less 
than  twenty-five  per  cent  thereof,  as  may  be  determined  by  the 
aforesaid  commission  by  the  remaining  cities  and  towns  constituting 
the  said  district,  in  proportions  determined  as  aforesaid  and  ten  per 
cent  by  the  commonwealth. 

SEC.  6.  To  meet  the  cost  of  the  improvements  executed  in  ac- 
cordance with  the  provisions  of  this  act,  the  treasurer  and  receiver 
general  shall  upon  application  of  the  Metropolitan  Planning  Board, 
issue  scrip  or  certificates  of  debt  in  the  name  and  on  behalf  of  the 
commonweath  and  under  its  seal  to  the  amount  annually  necessary 
for  five  years  from  the  date  of  the  first  of  such  applications.  In  no 
one  year  shall  the  proportion  to  be  paid  by  the  commonwealth  as  its 
part  in  the  expenses  authorized  by  section  five  of  this  act  exceed 
five  hundred  thousand  dollars  and  the  amount  of  scrip  or  certificates 
of  debt  issued  in  any  one  year  as  aforesaid  shall  be  limited  accord- 
ingly. All  loans  issued  by  the  commonwealth  in  accordance  herewith 
shall  be  serial  loans  and  shall  be  made  payable  in  annual  instalments 
in  the  manner  authorized  by  section  thirteen  of  chapter  twenty-seven 
of  the  Revised  Laws  as  amended  by  section  one  of  chapter  three 
hundred  and  forty-one  of  the  acts  of  the  year  nineteen  hundred  and 
eight.  Such  scrip  or  certificates  of  debt  shall  be  designated  on  the 
face  as  the  Metropolitan  Planning  Board  Loan,  shall  be  counter- 
signed by  the  governor,  and  shall  be  deemed  a  pledge  of  the  faith 
and  credit  of  the  commonwealth,  and  the  principal  and  interest 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      593 

shall  be  paid  at  the  times  specified  therein  in  gold  coin  of  the  United 
States;  and  said  scrip  or  certificates  of  debt  shall  be  sold  and  dis- 
posed of  at  public  auction  or  in  such  other  mode  and  at  such  times 
and  prices,  and  in  such  amounts  and  at  such  rates  of  interest  as  the 
governor  and  council  shall  deem  best.  Any  premium  realized  on 
the  sale  of  said  scrip  or  certificates  of  debt  shall  be  applied  to  the 
payment  of  the  interest  on  said  loan  as  it  accrues. 

SEC.  7.  The  supreme  judicial  court  sitting  in  equity  shall  in  the 
year  nineteen  hundred  and  twelve  and  every  year  thereafter  on  the 
application  of  the  Metropolitan  Planning  Board,  or  of  the  attorney  of 
any  of  the  cities  or  towns  in  the  metropolitan  district,  and  after 
notice  to  each  of  said  cities  and  towns,  appoint  three  commisisoners, 
neither  of  whom  shall  be  a  resident  of  any  of  said  cities  or  towns, 
who  shall,  after  such  notice  and  hearing  as  they  shall  deem  just  and 
equitable,  determine  the  proportions  in  which  each  of  said  cities  and 
towns  shall  pay  money  into  the  treasury  of  the  commonwealth  for  the 
year  following  that  in  which  the  application  is  made  to  meet  the 
interest,  serial  loan  requirements,  expenses,  including  the  expenses  of 
'administration,  and  cost  for  such  year.  Said  commission  shall  make 
•such  apportionment  on  or  before  the  first  day  of  March  in  each  year. 
The  said  commissioners  shall  determine  the  several  amounts  to  be 
paid  by  the  cities  and  towns  of  the  metropolitan  district  other  than 
those  in  which  ordinary  or  extraordinary  improvements  are  situated 
to  the  aggregate  amount  of  twenty-five  per  cent  of  the  total  cost  of 
improvements  classified  as  ordinary.  In  the  case  of  improvements 
classified  as  extraordinary,  they  shall  also  determine  how  far,  if  at  all, 
the  proportion  of  the  total  cost  of  such  improvements  to  be  paid  by 
the  municipalities  in  which  they  are  physically  situated  shall  be  re- 
duced below  sixty-five  per  cent  and  correspondingly  increased  as 
regards  some  or  all  of  the  remaining  municipalities  comprising  the 
metropolitan  district.  The  proportion  to  be  ultimately  payable  by 
the  commonwealth  shall  be  ten  per  cent  of  the  total  cost  whether 
for  ordinary  or  extraordinary  improvements.  The  amounts  severally 
to  be  paid  by  the  separate  municipalities  shall  be  apportioned  by  the 
said  commissioners  on  the  basis  of  benefit  in  each  case  and  with 
due  account  of  population,  valuation  and  any  other  thing  which,  in 
the  opinion  of  the  said  commission,  should  affect  the  said  proportional 
contributions:  provided,  however,  that  nothing  herein  shall  be  con- 
strued to  change  the  apportionment  of  the  cost  for  public  improve- 
ments to  which  the  commonwealth  already  contributes  under  existing 
laws.64 

SEC.  8.     Said  board  may  appoint   such  office   and  technical  as- 

64  A  study  of  the  apportionment  of  assessments  according  to  benefits, 
between  the  city  as  a  whole,  the  various  boroughs  of  the  city,  and  the 
land  owners  in  New  York  City,  will  reveal  some  analogy  between  it  and 
the  apportionment  here  suggested.  See  Charter,  sees.  972-973- 


594  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

sistants  as  it  seems  necessary  to  carry  out  the  purposes  of  this  act. 
It  shall  determine  the  duties  and  compensations  of  such  appointees 
and  remove  them  at  pleasure.  It  shall  be  supplied  with  a  suitable 
office  or  offices  for  its  work  and  for  its  maps,  plans,  documents  and 
records.  The  chairman  of  the  said  board  shall  receive  a  salary  of  ten 
thousand  dollars  a  year  and  each  of  the  other  four  members  thereof 
shall  receive  a  salary  of  one  thousand  dollars  a  year.  The  salaries  of 
the  commissioners  and  their  appointees  and  the  expenses  of  adminis- 
tration shall  be  paid  from  the  treasury  of  the  commonwealth  and 
shall  be  thereafter  assessed  ninety  per  cent  thereof  upon  the  cities 
and  towns  of  the  metropolitan  district  as  herein  defined  in  propor- 
tions to  be  determined  by  a  commission  appointed  by  the  supreme 
judicial  court  sitting  in  equity  as  hereinbefore  provided  and  ten  per 
cent  by  the  commonwealth.  On  or  before  the  second  Wednesday 
of  January  in  each  year  said  board  shall  make  a  report  in  print  of 
its  proceedings  to  the  general  court,  together  with  a  full  statement 
of  its  receipts  and  disbursements,  and  the  said  board  may  make  such 
additional  reports  in  print  or  otherwise  from  time  to  time  as  it  may 
deem  expedient. 

SEC.  9.  The  treasurer  of  the  commonwealth  shall  in  the  year 
nineteen  hundred  and  twelve  and  in  each  year  thereafter  estimate, 
in  accordance  with  the  proportions  determined  and  returned  as  afore- 
said, the  several  amounts  required  during  the  year  beginning  with 
the  first  day  of  January  from  the  cities  and  towns  aforesaid,  to  meet 
said  interest,  serial  loan  requirements,  salaries,  expenses,  including 
expenses  of  administration  and  cost  for  each  year,  and  deficiency, 
if  any,  and  shall  include  the  amount  required  from  a  city  or  town  in, 
and  make  it  a  part  of,  the  sum  to  be  paid  by  such  city  or  town  as 
its  annual  state  tax  and  the  same  shall  be  paid  by  the  city  or  town 
into  the  treasury  of  the  commonwealth  at  the  time  required  for  the 
payment,  and  as  a  part  of  its  state  tax. 

SEC.  10.  This  act  shall  take  effect  upon  its  passage  so  far  as  it 
affects  the  appointment  of  the  members  of  the  Metropolitan  Plan- 
ning Board  and  in  all  other  respects  this  act  shall  take  effect  on  the 
first  day  of  nineteen  hundred  and  twelve. 

No.  10.    THE  PENNSYLVANIA  SUBURBAN  METROPOLITAN  PLANNING 

ACT" 

WHEREAS,  The  establishment  of  Suburban  Metropolitan  Planning 
Commissions  having  jurisdiction  over  territory  adjacent  to  cities  of 
the  first  class  is  desirable,  in  order  to  provide  for  its  proper  develop- 
ment by  the  cooperation  of  the  various  local  governmental  units  in 
matters  pertaining  to  their  common  welfare;  and 

"i9>3.  May  23;  P.  L.  339;  repealed  by  1915,  June  I ;  P.  L.  705. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      595 


WHEREAS,  It  is  desirable,  that  there  should  be  coordination 
of  effort,  with  Urban  Metropolitan  Planning  Commissions, 
relating  to  cities  of  the  first  class  themselves,  wherever  the  same 
may  exist: — 

SEC.  i.  Be  it  enacted,  etc.,  That  in  order  to  secure  coordinated, 
comprehensive  plans  of  highways  and  roads,  parks  and  parkways, 
and  all  other  means  of  inter-communication,  water-supply,  sewerage 
and  sewage  disposal,  collection  and  disposal  of  garbage,  housing, 
sanitation  and  health  playgrounds,  civic  centers,  and  other  public 
improvements,  as  hereinafter  provided  for,  the  districts  surrounding 
and  within  twenty-five  miles  of  the  limits  of  cities  of  the  first  class, 
whether  in  one  or  more  counties,  and  in  order  to  prevent  waste  by 
unnecessary  duplication,  the  areas  included  within  twenty-five  miles 
of  the  limits  of  cities  of  the  first  class  shall  be  denominated  the 
Suburban  Metropolitan  Districts  of  cities  of  the  first  class  of  Penn- 
sylvania. When  any  city,  borough  or  township  is  partly  within  and 
partly  without  the  twenty-five  mile  limit,  the  whole  of  such  city,  bor- 
ough, or  township  shall  be  regarded  as  within  the  Suburban  Metro- 
politan District. 

SEC.  2.  There  shall  be  an  executive  department  created  for  every 
Suburban  Metropolitan  District,  to  be  known  as  the  Department  of 
Suburban  Metropolitan  Planning,  which  shall  be  in  charge  of  a 
Suburban  Metropolitan  Planning  Commission. 

SEC.  3.  The  Suburban  Metropolitan  Planning  Commission  shall 
be  appointed  by  the  Governor  of  the  State  of  Pennsylvania,  and 
shall  consist  of  fifteen  members,  who  may  or  may  not  hold  other 
public  office,  whether  for  profit  or  otherwise,  of  whom  twelve  shall 
be  residents  of  the  district  involved,  and  three  shall  be  residents  of 
the  said  city  of  the  first  class,  five  members  to  be  appointed  to  serve 
for  one  year,  five  for  two  years,  five  for  three  years;  then,  there- 
after, each  appointment  to  be  for  three  years. 

An  appointment  to  fill  a  casual  vacancy  shall  be  for  the  unexpired 
portion  of  the  term.  Nine  shall  constitute  a  quorum. 

The  Suburban  Metropolitan  Planning  Commission  shall  make 
and  alter  rules  and  regulations  for  its  own  organization  and  pro- 
cedure, consistent  with  the  laws  of  the  Commonwealth.  From  its 
own  members  it  shall  choose  a  chairman  and  vice-chairman.  Each 
member  shall  serve  without  compensation.  On  or  before  January 
tenth  of  each  and  every  year,  the  Commission  shall  make  to  the 
mayor  of  each  city,  to  councils  of  each  borough,  to  the  commis- 
sioners of  each  first  class  township,  and  to  the  supervisors  of  each 
second  class  township,  within  the  Suburban  Metropolitan  District, 
to  the  mayor  of  the  said  city  of  the  first  class,  and  to  the  Governor 
of  the  State  of  Pennsylvania,  a  report  of  its  transactions  and  recom- 
mendations. The  Commission  may  employ  a  secretary,  engineers,  and 
other  experts  and  persons,  whose  salaries  and  wages,  as  well  as  all 


Cities  of 
the  first 
class. 


Suburban 
Metropol- 
itan 
districts. 

Suburban 
Metropol- 
itan plan- 
ning com- 
mission. 

Appoint- 
ment of 
commis- 
sion. 


Term  of 
office 

Vacancies. 


Rules  and 
Regula- 
tions. 


Reports. 

Assistants 
and  em- 
ployees. 


596 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


the  other  necessary  expenses  of  the  Commission  and  members  thereof, 
shall  be  provided  for  as  hereinafter  set  forth. 

SEC.  4.  The  Suburban  Metropolitan  Planning  Commission  shall 
make,  or  cause  to  be  made,  and  laid  before  the  respective  govern- 
mental authorities  of  the  district,  and,  in  its  discretion,  cause  to  be 
published,  a  map  or  maps  of  the  entire  district,  or  any  portion  or 
portions  thereof,  showing  any  or  all  systems  of  transportation,  high- 
ways and  roads,  parks,  parkways,  water-supply,  sewerage  and  sewage 
disposal,  collection  and  disposal  of  garbage,  housing,  sanitation,  play- 
grounds and  civic  centers,  or  of  other  natural  physical  features  of 
the  district:  and  it  shall  prepare  plans  for  any  new  or  enlarged 
facilities  for  intercommunication,  parks,  parkways,  water-supply  sys- 
tems, sewers,  sewage  disposal,  garbage  disposal,  land  plottings  and 
housing  arrangements,  playgrounds  and  civic  centers,  or  any  other 
public  improvement  that  will  affect  the  character  of  the  district  as  a 
whole,  or  more  than  one  political  unit  within  the  district,  or  any 
widening,  extension  or  relocation  of  the  same,  or  any  change  in  the 
existing  township  or  borough  or  city  plans,  by  it  deemed  advisable. 
And  it  shall  make  recommendations  to  the  respective  governmental 
authorities,  from  time  to  time,  concerning  any  such  matters  or  things 
aforesaid,  for  action  by  the  respective  legislative,  administrative,  or 
governmental  bodies  thereon;  and  in  so  doing  have  regard  for  the 
present  conditions  and  future  needs  and  growth  of  the  district,  and 
the  distribution  and  relative  location  of  all  the  principal  and  other 
streets,  and  railways,  waterways,  and  all  other  means  of  public  travel 
and  business  communications,  as  well  as  the  distribution  and  relative 
location  of  all  public  buildings,  public  grounds,  and  open  spaces  de- 
voted to  public  use,  and  the  planning,  subdivision  and  laying  out  for 
urban  uses  of  private  grounds  brought  into  the  market  from  time 
to  time. 

SEC.  5.  Any  city,  borough,  or  township,  within  any  Suburban 
Metropolitan  District,  may  request  the  Suburban  Metropolitan  Plan- 
ning Commission  of  that  district  to  prepare  plans  concerning  any 
of  the  subjects  set  forth  in  section  four  of  this  act;  whereupon  it  shall 
be  the  duty  of  the  Commission  to  prepare  such  plans  with  dispatch. 

SEC.  6.  The  Suburban  Metropolitan  Planning  Commission  may 
make  recommendations  to  any  public  authorities,  or  any  corporation  or 
individual  in  said  districts,  with  reference  to  the  location  of  any 
buildings  and  structures  to  be  constructed  by  them. 

SEC.  7.  The  plans  so  made  and  laid  before  the  respective  govern- 
mental authorities  by  the  Suburban  Metropolitan  District  Planning 
Commission,  according  to  sections  four,  five  and  six,  shall  be  con- 
sidered by  such  respective  authorities,  and  followed  by  them  in  so 
far  as  shall  be  determined  by  each  authority : 

Provided,  however,  that  the  provisions  of  this  act  shall  not  abridge 
or  in  any  way  affect  the  provisions  of  an  act,  entitled  "An  act  crc- 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      597 

ating  a  Department  of  Health  and  defining  its  powers  and  duties," 
approved  the  twenty-seventh  day  of  April,  Anno  Domini,  one  thou- 
sand nine  hundred  and  five  ;  or  the  provisions  of  an  act,  entitled  "An 
act  to  preserve  the  purity  of  the  waters  of  the  State  for  the  protec- 
tion of  the  public  health,"  approved  the  twenty-second  day  of  April, 
one  thousand  nine  hundred  and  five. 

SEC.  8.  On  or  before  January  tenth  of  each  and  every  year,  Estimate 
the  Commission  shall  prepare  an  estimate  of  its  expenses  for  the  ^nses. 
ensuing  year,  setting  forth  with  as  much  detail  as  is  practicable 
the  items  of  which  such  estimate  is  composed;  and  shall  cause  the 
amount  of  its  expenses  so  estimated,  after  deducting  the  cash  on 
hand  and  the  unpaid  assessments,  to  be  assessed  against  the  cities, 
boroughs,  and  townships  within  the  district,  in  proportion  to  their 
respective  tax  duplicates.  The  itemized  estimate  of  expenses  and  a 
statement  of  the  rate  of  assessment  shall  be  spread  upon  the  minutes 
of  the  Commission,  which  shall  be  kept  open  at  all  times  for  public 
inspection.  Each  and  every  assessment,  when  certified  by  the  chair- 
man and  secretary  of  the  Commission,  shall  constitute  a  charge  on 
the  treasury  of  the  respective  city,  borough,  and  township,  and  its 
immediate  payment  shall  be  at  once  provided  for.  The  Commission 
shall  have  power  to  secure  payment  of  the  assessments  by  suits  of 
mandamus,  or  otherwise;  provided,  that  the  rate  of  assessment  shall 
not  exceed  one-tenth  of  one  mill. 


Assess- 
ment 


No.   ii.    THE  NEW  YORK,  NEW  JERSEY  COMPACT  FOR  PLANNING 
NEW  YORK  HARBOR  "* 

An  Act  authorizing  designated  authorities  in  behalf  of  the  state 
of  New  York  to  enter  into  an  agreement  or  compact  with  designated 
authorities  of  the  state  of  New  Jersey  for  the  creation  of  the  "Port 
of  .New  York  District,"  the  establishment  of  "The  Port  of  New  York 
Authority,"  and  the  defining  of  the  powers  and  duties  of  such 
authority. 

SEC.  i.  *  Commissioners  named  and  authorized  to  enter  into 
the  following  compact  with  the  state  of  Jersey. 

WHEREAS,  In  the  year  eighteen  hundred  and  thirty-four  the  states    prcamtie. 
of  New  York  and  New  Jersey  did  enter  into  an  agreement  fixing 
and  determining  the  rights  and  obligations  of  the  two  states  in  and 


*  Summarized. 

^New  York  Laws  1921,  ch.  154;  New  Jersey  Laws,  P.  L.  1921,  p.  412, 
ch.  151,  practically  identical  with  it.  See  also  the  various  reports  of  the 
commission  appointed  under  New  York  1917,  ch.  426,  and  New  Jersey 
P.  L.  1917.  p.  288,  ch.  130;  and  also  New  York  Laws  1921,  ch.  203;  and 
New  Jersey  Laws,  P.  L.  1921,  p.  423,  ch.  152.  For  the  original  compact, 
see  Laws,  New  York,  1834,  ch.  8;  New  Jersey  P.  L.  1834,  P-  ll&>  ratified 
by  the  United  States,  4  U.  S.  Statutes  at  Large  708. 


598 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


about  the  waters  between  the  two  states,  especially  in  and  about  the 
bay  of  New  York  and  the  Hudson  River;  and 

WHEREAS,  Since  that  time  the  commerce  of  the  port  of  New 
York  has  greatly  developed  and  increased  and  the  territory  in  and 
around  the  port  has  become  commercially  one  center  or  district;  and 

WHEREAS,  It  is  confidently  believed  that  a  better  coordination  of 
the  terminal,  transportation  and  other  facilities  of  commerce  in, 
about  and  through  the  port  of  New  York,  will  result  in  great  econo- 
mies, benefiting  the  nation,  as  well  as  the  states  of  New  York  and 
New  Jersey;  and 

WHEREAS,  The  future  development  of  such  terminal,  transporta- 
tion and  other  facilities  of  commerce  will  require  the  expenditure 
of  large  sums  of  money,  and  the  cordial  cooperation  of  the  states 
of  New  York  and  New  Jersey  in  the  encouragement  of  the  invest- 
ment of  capital,  and  in  the  formulation  and  execution  of  the  neces- 
sary physical  plans;  and 

WHEREAS,  Such  result  can  best  be  accomplished  through  the  co- 
operation of  the  two  states  by  and  through  a  joint  or  common  agency. 

Now,  THEREFORE,  The  said  states  of  New  Jersey  and  New  York 
do  supplement  and  amend  the  existing  agreement  of  eighteen  hun- 
dred and  thirty-four  in  the  following  respects: 

ART.  I.  They  agree  to  and  pledge,  each  to  the  other,  faithful  co- 
operation in  the  future  planning  and  development  of  the  port  of 
New  York,  holding  in  high  trust  for  the  benefit  of  the  nation  the 
special  blessings  and  natural  advantages  thereof. 

ART.  II.  To  that  end  the  two  states  do  agree  that  there  shall  be 
created  and  they  do  hereby  create  a  district  to  be  known  as  the  "Port 
of  New  York  District"  (for  brevity  hereinafter  referred  to  as  "The 
District")  which  shall  embrace  the  territory  bounded  and  described 
as  follows:  .  .  . 

The  boundaries  of  said  district  may  be  changed  from  time  to  time 
by  the  action  of  the  legislature  of  either  state  concurred  in  by  the 
legislature  of  the  other. 

ART.  III.  There  is  hereby  created  "The  Port  of  New  York 
Authority"  (for  brevity  hereinafter  referred  to  as  the  "Port  Au- 
thority"), which  shall  be  a  body  corporate  and  politic,  having  the 
powers  and  jurisdiction  hereinafter  enumerated,  and  such  other  and 
additional  powers  as  shall  be  conferred  upon  it  by  the  legislature 
of  either  state  concurred  in  by  the  legislature  of  the  other,  or  by  act 
or  acts  of  congress,  as  hereinafter  provided. 

ART.  IV.  The  port  authority  shall  consist  of  six  commissioners 
— three  resident  voters  from  the  state  of  New  York,  two  of  whom 
shall  be  resident  voters  of  the  city  of  New  York,  and  three  resident 
voters  from  the  state  of  New  Jersey,  two  of  whom  shall  be  resi- 
dent voters  within  the  New  Jersey  portion  of  the  district,  the  New 
York  members  to  be  chosen  by  the  state  of  New  York  and  the  New 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      599 

Jersey  members  by  the  state  of  New  Jersey,  in  the  manner  and  for 
the  terms  fixed  and  determined  from  time  to  time  by  the  legislature 
of  each  state  respectively,  except  as  herein  provided. 

Each  commissioner  may  be  removed  or  suspended  from  office 
as  provided  by  the  law  of  the  state  for  which  he  shall  be  appointed. 

ART.  V.  The  commissioners  shall,  for  the  purpose  of  doing  busi- 
ness, constitute  a  board  and  may  adopt  suitable  by-laws  for  its  man- 
agement. 

ART.  VI.  The  port  authority  shall  constitute  a  body,  both  corpo- 
rate and  politic,  with  full  power  and  authority  to  purchase,  con- 
struct, lease  and/or  operate  any  terminal  or  transportation  facility 
within  said  district;  and  to  make  charges  for  the  use  thereof;  and 
for  any  of  such  purposes  to  own,  hold,  lease  and/or  operate  real 
or  personal  property,  to  borrow  money  and  secure  the  same  by  bonds 
or  by  mortgages  upon  any  property  held  or  to  be  held  by  it.  No 
property  now  or  hereafter  vested  in  or  held  by  either  state,  or  by 
any  county,  city,  borough,  village,  township  or  other  municipality, 
shall  be  taken  by  the  port  authority,  without  the  authority  or  con- 
sent of  such  state,  county,  city,  borough,  village,  township  or  other 
municipality,  nor  shall  anything  herein  impair  or  invalidate  in  any 
way  any  bonded  indebtedness  of  such  state,  county,  city,  borough, 
village,  township  or  other  municipality,  nor  impair  the  provisions 
of  law  regulating  the  payment  into  sinking  funds  of  revenues  de- 
rived from  municipal  property,  or  dedicating  the  revenues  derived 
from  any  municipal  property  to  a  specific  purpose. 

The  powers  granted  in  this  article  shall  not  be  exercised  by  the 
port  authority  until  the  legislatures  of  both  states  shall  have  approved 
of  a  comprehensive  plan  for  the  development  of  the  port  as  herein- 
after provided.*1 

ART.  VII.  The  port  authority  shall  have  such  additional  powers 
and  duties  as  may  hereafter  be  delegated  to  or  imposed  upon  it  from 
time  to  time  by  the  action  of  the  legislature  of  either  state  concurred 
in  by  the  legislature  of  the  other.  Unless  and  until  otherwise  pro- 
vided, it  shall  make  an  annual  report  to  the  legislature  of  both  states, 
setting  forth  in  detail  the  operations  and  transactions  conducted  by 
it  pursuant  to  this  agreement  and  any  legislation  thereunder.  The 
port  authority  shall  not  pledge  the  credit  of  either  state  except  by 
and  with  the  authority  of  the  legislature  thereof. 

ART.  VIII.  Unless  and  until  otherwise  provided,  all  laws  now 
or  hereafter  vesting  jurisdiction  or  control  in  the  public  service 
commission,  or  the  public  utilities  commission,  or  like  body,  within 
each  state  respectively,  shall  apply  to  railroads  and  to  any  trans- 
portation, terminal  or  other  facility  owned,  operated,  leased  or 
constructed  by  the  port  authority,  with  the  same  force  and  effect  as 

87  This  approval  given,  Laws,  New  York,  1922,  ch.  43,  New  Jersey, 
1922,  ch.  9,  and  ratified  by  U.  S.  Congress,  1921  and  1922. 


Commis- 
sioners   to 
constitute 
board; 
bylaws. 

Port  au- 
thority to 
constitute 
corporate 
and  politic 
body — 
powers 
relative  to 
terminal  or 
transporta- 
tion 
facilities. 


Powers, 
when  to  be 
exercised. 


Additional 
powers 
and  duties. 


Annual 
report. 
Pledging 
credit 
of  states. 


Applica- 
tion of  lawj 
relative 
to  public 
service 
commis- 
sion,   etc. 


6oo 


THE  LAW  OF  CITY  PLANNING  AND  ZONING 


if  such  railroad  or  transportation,  terminal  or  other  facility  were 
owned,  leased,  operated  or  constructed  by  a  private  corporation. 

ART.  IX.  Nothing  contained  in  this  agreement  shall  impair  the 
powers  of  any  municipality  to  develop  or  improve  port  and  terminal 
facilities. 

ART.  X.  The  legislatures  of  the  two  states,  prior  to  the  signing 
of  this  agreement,  or  thereafter  as  soon  as  may  be  practicable,  will 
adopt  a  plan  or  plans  for  the  comprehensive  development  of  the  port 
of  New  York. 

ART.  XI.  The  port  authority  shall  from  time  to  time  make  plans 
for  the  development  of  said  district,  supplementary  to  or  amenda- 
tory of  any  plan  theretofore  adopted,  and  when  such  plans  are  duly 
approved  by  the  legislatures  of  the  two  states,  they  shall  be  binding 
upon  both  states  with  the  same  force  and  effect  as  if  incorporated 
in  this  agreement. 

ART.  XII.  The  port  authority  may  from  time  to  time  make 
recommendations  to  the  legislatures  of  the  two  states  or  to  the  con- 
gress of  the  United  States,  based  upon  study  and  analysis,  for  the 
better  conduct  of  the  commerce  passing  in  and  through  the  port  of 
New  York,  the  increase  and  improvement  of  transportation  and 
terminal  facilities  therein,  and  the  more  economical  and  expeditious 
handling  of  such  commerce. 

ART."  XIII.  The  port  authority  may  petition  any  interstate  com- 
merce commission  (or  like  body),  public  service  commission,  public 
utilities  commission  (or  like  body),  or  any  other  federal,  municipal, 
state  or  local  authority,  administrative,  judicial  or  legislative,  having 
jurisdiction  in  the  premises,  after  the  adoption  of  the  comprehensive 
plan  as  provided  for  in  article  ten,  for  the  adoption  and  execution  of 
any  physical  improvement,  change  in  method,  rate  of  transportation, 
system  of  handling  freight,  warehousing,  docking,  lightering  or  trans- 
fer of  freight,  which,  in  the  opinion  of  the  port  authority,  may  be 
designed  to  improve  or  better  the  handling  of  commerce  in  and 
through  said  district,  or  improve  terminal  and  transportation  facilities 
therein.  It  may  intervene  in  any  proceeding  affecting  the  commerce 
of  the  port. 

ART.  XIV.  The  port  authority  shall  elect  from  its  number  a 
chairman,  vice-chairman,  and  may  appoint  such  officers  and  em- 
ployees as  it  may  require  for  the  performance  of  its  duties,  and  shall 
fix  and  determine  their  qualifications  and  duties. 

ART.  XV.  Unless  and  until  the  revenues  from  operations  con- 
ducted by  the  port  authority  are  adequate  to  meet  all  expenditures, 
the  legislatures  of  the  two  states  shall  appropriate,  in  equal  amounts, 
annually,  for  the  salaries,  office  and  other  administrative  expenses, 
such  sum  or  sums  as  shall  be  recommended  by  the  port  authority 
and  approved  by  the  governors  of  the  two  states,  but  each  state  obli- 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES    601 


gates  itself  hereunder  only  to  the  extent  of  one  hundred  thousand 
dollars  in  any  one  year. 

ART.  XVI.  Unless  and  until  otherwise  determined  by  the  action 
of  the  legislatures  of  the  two  states,  no  action  of  the  port  authority 
shall  be  binding  unless  taken  at  a  meeting  at  which  at  least  two  mem- 
bers from  each  state  are  present  and  unless  four  votes  are  cast  there- 
for, two  from  each  state. 

Each  state  reserves  the  right  hereafter  to  provide  by  law  for 
the  exercise  of  a  veto  power  by  the  governor  thereof  over  any  action 
of  any  commissioner  appointed  therefrom. 

ART.  XVII.  Unless  and  until  otherwise  determined  by  the  action 
of  the  legislatures  of  the  two  states,  the  port  authority  shall  not  incur 
any  obligations  for  salaries,  office  or  other  administrative  expenses, 
within  the  provisions  of  article  fifteen,  prior  to  the  making  of  appro- 
priations adequate  to  meet  the  same. 

ART.  XVIII.  The  port  authority  is  hereby  authorized  to  make 
suitable  rules  and  regulations  not  inconsistent  with  the  constitution 
of  the  United  States  or  of  either  state,  and  subject  to  the  exercise 
of  the  power  of  congress,  for  the  improvement  of  the  conduct  of 
navigation  and  commerce,  which,  when  concurred  in  or  authorized 
by  the  legislatures  of  both  states,  shall  be  binding  and  effective  upon 
all  persons  and  corporations  affected  thereby. 

ART.  XIX.  The  two  states  shall  provide  penalties  for  violations 
of  any  order,  rule  or  regulation  of  the  port  authority,  and  for  the 
manner  of  enforcing  the  same. 

ART.  XX.  The  territorial  or  boundary  lines  established  by  the 
agreement  of  eighteen  hundred  and  thirty-four,  or  the  jurisdiction 
of  the  two  states  established  thereby,  shall  not  be  changed  except  as 
herein  specifically  modified. 

ART.  XXI.  Either  state  may  by  its  legislature  withdraw  from 
this  agreement  in  the  event  that  a  plan  for  the  comprehensive  de- 
velopment of  the  port  shall  not  have  been  adopted  by  both  states  on 
or  prior  to  July  first,  nineteen  hundred  and  twenty -three ;  and  when 
such  withdrawal  shall  have  been  communicated  to  the  governor  of 
the  other  state  by  the  state  so  withdrawing,  this  agreement  shall  be 
thereby  abrogated. 

ART.  XXII.  Definitions. — The  following  words  as  herein  used 
shall  have  the  following  meaning :  "Transportation  facility"  shall  in- 
clude railroads,  steam  or  electric,  motor  truck  or  other  street  or 
highway  vehicles,  tunnels,  bridges,  boats,  ferries,  car-floats,  lighters, 
tugs,  floating  elevators,  barges,  scows  or  harbor  craft  of  any  kind, 
air  craft  suitable  for  harbor  service,  and  every  kind  of  transporta- 
tion facility  now  in  use  or  hereafter  designed  for  use  for  the  trans- 
portation or  carriage  of  persons  or  property.  "Terminal  facility" 
shall  include  wharves,  piers,  slips,  ferries,  docks,  dry  docks,  bulk- 


Action, 

when 
binding. 

Veto. 


Obliga- 
tions for 
expenses. 


Rules  for 
improve- 
ment of 
navigation 
and  com- 
merce. 


Penalties. 


Boundary 
lines  and 
jurisdicton 
not  to  be 
changed. 

With- 
drawal 
by  either 
state  from 
agreement- 


602  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

heads,  dock-walls,  basins,  car-floats,  float-bridges,  grain  or  other 
storage  elevators,  warehouses,  cold  storage,  tracks,  yards,  sheds, 
switches,  connections,  overhead  appliances,  and  every  kind  of  termi- 
nal or  storage  facility  now  in  use  or  hereafter  designed  for  use  for 
the  handling,  storage,  loading  or  unloading  of  freight  at  steamship, 
railroad  or  freight  terminals.  "Railroads"  shall  include  railways, 
extensions  thereof,  tunnels,  subways,  bridges,  elevated  structures, 
tracks,  poles,  wires,  conduits,  power  houses,  substations,  lines  for 
the  transmission  of  power,  car-barns,  shops,  yards,  sidings,  turn- 
outs, switches,  stations  and  approaches  thereto,  cars  and  motive 
equipment.  "Facility"  shall  include  all  works,  buildings,  structures, 
appliances  and  appurtenances  necessary  and  convenient  for  the  proper 
construction,  equipment,  maintenance  and  operation  of  such  facility 
or  facilities  or  any  one  or  more  of  them.  "Real  property"  shall  in- 
clude land  under  water,  as  well  as  uplands,  and  all  property  either 
now  commonly  or  legally  defined  as  real  property  or  which  may  here- 
after be  so  defined.  "Personal  property"  shall  include  choses  in 
action  and  all  other  property  now  commonly  or  legally  defined  as 
personal  property  or  which  may  hereafter  be  so  defined.  "To  lease" 
shall  include  to  rent  or  to  hire.  "Rule  or  regulation,"  until  and  un- 
less otherwise  determined  by  the  legislatures  of  both  states,  shall 
mean  any  rule  or  regulation  not  inconsistent  with  the  constitution 
of  the  United  States  or  of  either  state,  and,  subject  to  the  exercise 
of  the  power  of  congress,  for  the  improvement  of  the  conduct  of 
navigation  and  commerce  within  the  district,  and  shall  include  charges, 
rates,  rentals  or  tolls  fixed  or  established  by  the  port  authority ;  and 
until  otherwise  determined  as  aforesaid,  shall  not  include  matters 
relating  to  harbor  or  river  pollution.  Wherever  action  by  the  legis- 
lature of  either  state  is  herein  referred  to,  it  shall  mean  an  act  of 
the  legislature  duly  adopted  in  accordance  with  the  provisions  of  the 
constitution  of  the  state. 

Consent,  approval  or  recommendation  of  municipality;  how  given. 
Wherever  herein  the  consent,  approval  or  recommendation  of  a 
"municipality"  is  required,  the. word  "municipality"  shall  be  taken 
to  include  any  city  or  incorporated  village  within  the  port  district, 
and  in  addition  in  the  state  of  New  Jersey  any  borough,  town,  town- 
ship or  any  municipality  governed  by  an  improvement  commission 
within  the  district.  Such  consent,  approval  or  recommendation  when- 
ever required  in  the  case  of  the  city  of  New  York  shall  be  deemed 
to  have  been  given  or  made  whenever  the  board  of  estimate  and 
apportionment  of  said  city  or  any  body  hereafter  succeeding  to  its 
duties  shall  by  majority  vote  pass  a  resolution  expressing  such  con- 
sent, approval  or  recommendation ;  and  in  the  case  of  any  municipality 
now  or  hereafter  governed  by  a  commission,  whenever  the  commis- 
sion thereof  shall  by  majority  vote  pass  such  a  resolution;  and  in 
all  other  cases  whenever  the  body  authorized  to  grant  consent  to 


6o3 

the  use  of  the  streets  or  highways  of  such  municipality  shall  by  a 
majority  vote  pass  such  a  resolution. 


Agreement  to  be  binding  when  duly  executed. 
Authority  of  governor  to  fill  vacancies  among  commis- 


*  SEC.  2. 

*  SEC.  3. 
sioners. 

*  SEC.  4.     Commissioners   of   two   states   authorized   to   apply  to 
congress  of  the  United  States  for  ratification  of  compact,  but,  with- 
out it,  the  compact  shall  be  binding  to  the  extent  provided  therein. 

SEC.  5.     This  act  shall  take  effect  immediately. 

No.  12.    THE  NEW  JERSEY  COUNTY  PLANNING  ACT* 

SEC.  1601.  Every  board  of  chosen  freeholders  shall  have  power 
to  prepare  and  adopt  a  plan  for  the  betterment  and  the  systematic 
development  of  the  county,  and  shall  have  power  and  authority  to 
employ  experts  and  to  pay  for  their  services,  and  to  pay  such  other 
expenses  as  may  be  necessary  for  the  making  of  such  plan. 

SEC.  1602.  Every  board  of  chosen  freeholders  may,  by  resolu- 
tion, provide  for  the  establishment  of  a  commission  consisting  of  not 
more  than  seven  citizens  of  such  county  to  act  as  a  county  plan  com- 
mission. Such  commission,  if  established,  shall  have  all  the  power 
and  authority  conferred  upon  boards  of  chosen  freeholders  by  this 
article,  except  that  the  said  commission  may  expend  only  such  sums 
as  may  be  appropriated  for  such  purpose  by  the  board  of  chosen  free- 
holders. 

SEC.  1603.  Every  board  of  chosen  freeholders  adopting  any  such 
plan,  or  any  county  plan  commission  appointed  hereunder,  shall  en- 
deavor to  cause  all  municipalities  within  the  county,  and  adjoining 
it,  to  cooperate  in  the  laying  out  of  roads  and  boulevards  and  in 
the  betterment  and  the  systematic  development  of  the  county. 

No.  13.    THE  CALIFORNIA  CAPITAL  CITY  PLANNING  LAW* 

SEC.  I.  There  shall  be  a  state  capital  planning  commission  com- 
posed of  the  governor,  and  state  librarian,  ex-officio  members  and 
three  members  to  be  appointed  by  the  governor,  at  least  one  of  whom 
shall  be  a  recognized  expert  in  the  planning  of  cities  and  towns.  Ap- 
pointive members  of  this  commission  shall  serve  without  pay  and  shall 
hold  office  in  the  first  instance  for  terms  respectively  for  two  years, 
four  years,  and  six  years  and  until  their  successors  have  been  ap- 
pointed and  qualified.  Their  successors  shall  serve  for  terms  of  six 
years  each  and  appointment  to  fill  a  casual  vacancy  shall  be  only  for 

*  Summarized. 

"P.  L.  1918,  p.  567,  ch.  185,  art.  XVI. 

*  1915,  P-  1514,  ch.  757. 


Develop- 
ment of 
county. 


County 
plan  com- 
mission. 


Municipal 
coopera- 
tion. 


planning 
created. 


604  THE  LAW  OF  CITY  PLANNING  AND  ZONING 

the  unexpired  portion  of  the  term.  Three  shall  be  a  quorum.  They 
may  make  and  alter  rules  and  regulations  for  their  own  procedure 
consistent  with  the  laws  of  the  state.  They  shall  consider  all  matters 
in  city  planning  affecting  the  future  needs  of  the  state  and  the  rela- 
tion of  the  state  plans  to  those  of  the  capital  city. 

SEC.  2.  They  shall  confer  and  advise  with  the  city  planning  body 
of  tne  capital  city  concerning  all  matters  affecting  the  metropolitan 
district  in  and  about  the  said  capital  city  and  for  a  distance  within 
fifteen  miles  outside  the  corporate  limits  of  the  said  city.  They  shall 
make  recommendations  to  the  governing  bodies  of  all  political  units 
within  this  area  and  to  the  governor  with  regard  to  all  matters  of 
interest  to  the  state  in  and  concerning  its  capital  city  with  reference 
to  its  system  of  roads,  boulevards  and  thoroughfares,  street  railway 
systems,  smoke  prevention,  parks,  parkways  and  playgrounds,  water 
supply,  sewage  and  sewage  disposal,  collection  and  disposal  of  garbage, 
civic  centers,  or  of  other  natural  or  artificial  physical  features  of  the 
district,  and  of  location  proposed  by  it  for  any  new  or  enlarged  thor- 
oughfares, street  railway  system,  union  depot,  parks,  parkways,  play- 
grounds, water  supply  systems,  sewers,  sewage  disposal  plant,  garbage 
disposal  plant  and  civic  centers,  or  any  other  public  improvement 
that  will  affect  the  character  of  the  district  as  a  whole,  to  political 
units  within  the  district.  It  may  make  recommendations  to  the  state, 
city  or  district  governmental  authorities,  from  time  to  time  concerning 
any  such  matters  or  things  aforesaid  for  action  by  the  respective  legis- 
lative. administrative  or  governing  bodies  thereof.  In  so  doing  they 
shall  have  regard  for  the  present  conditions  and  future  needs  and 
growth  of  the  district,  and  the  distribution  and  relative  location  of  all 
the  principal  and  other  streets  and  railways,  waterways,  and  all  other 
means  of  public  travel  and  business  communication,  as  well  as  the 
distribution  and  relative  location  of  all  public  buildings,  public  grounds 
and  open  spaces  devoted  to  the  public  use.  and  the  planning  and  lay- 
ing out  for  urban  uses  of  private  grounds  brought  into  the  market 
from  time  to  time. 

SEC.  3.  The  state  capital  planning  commission  shall  make  an  an- 
nual report  to  the  governor  which  the  secretary  of  state  shall  cause 
to  be  printed  as  a  public  document  and  copies  of  this  report  shall 
be  filed  with  each  and  every  governing  body  in  the  district  under 
supervision. 

No.  14.    THE  PENNSYLVANIA  STATE  PLANNING  BUREAU  ACT" 


I-     The  Secretary  of  Internal  Affairs  shall  establish  in  the 
said  Department  of  Internal  Affairs  a  Bureau  of  Municipalities.    The 
Bureau  shall  gather,  classify,  index,  make  available,  and  dis- 

. 

P.  L.  1919,  April  4,  P-  45- 


Publicity 
service. 


PLANNING  ADMINISTRATION  IN  THE  UNITED  STATES      605 

seminate  data,  statistical  information,  and  advice  that  may  be  helpful  Duties. 
in  improving  the  methods  of  administration  and  municipal  develop- 
ment in  the  several  municipalities  of  the  Commonwealth;  and  shall 
maintain,  for  the  benefit  of  the  municipalities,  a  publicity  service  to 
install  or  assist  in  the  installation  and  establishment  of  modern  sys- 
tems of  accounting  in  the  various  municipalities  of  the  state,  and  in 
order  to  promote  a  comprehensive  plan  or  series  of  plans  for  the 
probable  future  requirements  of  cities,  boroughs,  or  townships  of  the 
Commonwealth,  either  separately  or  jointly,  in  respect  to  a  system  of 
traffic  thoroughfares  and  other  highways  or  main  highways,  trans- 
portation of  every  sort,  suitably  coordinated  sites  for  public  build- 
ings, parks,  parkways,  playgrounds,  and  other  public  uses,  the  preser- 
vation of  natural  and  historic  features,  and  any  and  all  public  im- 
provements tending  to  the  advantage  of  municipalities  or  townships 
affected,  tending  to  their  advantage  as  a  place  of  business  and  resi- 
dence, and  to  either  make  or  secure  or  assist  in  making  or  securing 
the  necessary  surveys,  plans,  and  information. 

SEC.  2.  The  Secretary  of  Internal  Affairs  is  hereby  authorized 
to  employ  a  Chief  of  Bureau  of  Municipalities,  who  in  his  judgment 
shall  be  qualified  to  perform  the  duties  herein  described.  He  is  also 
authorized  to  employ  such  engineering,  accounting,  clerical,  steno- 
graphic, and  other  expert  service,  relating  to  the  gathering  of  infor- 
mation, its  distribution  and  publication  and  other  duties  incident  to 
the  purpose  of  the  Bureau,  or  transfer  to  such  duties  in  this  Bureau 
as  he  may  find  advisable  the  work  and  services  of  other  bureaus  or 
of  others  employed  in  the  department.  The  salaries  of  the  employees  Salaries, 
appointed  under  the  provisions  of  this  act  shall  be  fixed  by  the  Secre- 
tary of  Internal  Affairs,  and  shall  be  paid  from  the  funds  appropriated 
to  the  said  Department  of  Internal  Affairs. 

SEC.  3.  It  is  hereby  made  the  duty  of  every  city,  borough,  town- 
ship, or  county  official,  to  furnish  such  information  as  may  be  re- 
quested by  the  Chief  of  the  Bureau  of  Municipalities  or  his  duly  au- 
thorized deputy. 

*  Sees.  4  and  5.     Repeals  and  time  when  law  goes  into  effect. 

*  Summarized. 


Employees. 


Duty  of 
municipali- 
ties. 


BIBLIOGRAPHY 

I.  GENERAL  PRINCIPLES 

A.  SCOPE  OF  CITY  PLANNING 

B.  LEGAL   BASIS 

II.  PLANNING  THE  CITY  AS  A  WHOLE 

III.  PLANNING  THE  PUBLIC  FEATURES 

A.  ACQUIRING   LAND 

B.  PUBLIC  UTILITIES 

C.  STREETS — TRAFFIC — SETBACKS 

IV.  PLANNING  THE  PRIVATE  FEATURES 

A.  GENERAL 

B.  BUILDING  REGULATIONS 

C.  ZONING 

V.  CITY  PLANNING  FINANCE 

A.  ASSESSMENTS — GENERAL 

B.  ASSESSMENTS — ON  LAND  VALUE 

C.  ASSESSMENTS — SPECIAL 

D.  INCREMENT  TAXATION 

VI.  PLANNING  FOR  THE  PROMOTION  OF  BEAUTY 

A.  LEGAL    MEANS   AND  ACCOMPLISHMENT 

B.  REGULATING    OUTDOOR    ADVERTISING 

VII.  PLANNING  ADMINISTRATION 

Australia;  Belgium;  Canada;  France;  Germany  (General;  Met- 
ropolitan);  Great  Britain  (General;  Metropolitan);  Greece; 
India;  Italy;  Scotland;  Sweden;  United  States  (General;  Plan- 
ning Commissions;  Cities;  Metropolitan) 


607 


PART  I 

GENERAL  PRINCIPLES 
A.    SCOPE  OF  CITY  PLANNING 

ADAMS,  THOMAS. 

Architects  and  Landscape  Architects  as  Town  Planners.     Journal  of 
American  Institute  of  Architects,  April,  1922,  v.  10,  pp.  101-103. 
Rural  Planning  and  Development.    Canada,  Commission  of  Conserva- 
tion, 1917.    281  p. 

ALDRIDCE,  HENRY  R. 

The  Case  for  Town  Planning:  a  Practical  Manual  for  the  Use  of 
Councillors,  Officers,  and  Others  Engaged  in  the  Preparation  of  Town 
Planning  Schemes.  London,  Published  by  the  National  Housing  and 
Town  Planning  Council,  1915.  679  p. 

CADBURY,  GEORGE,  JR. 

Town  Planning  with  Special  Reference  to  the  Birmingham  Schemes. 
London,  Longmans  Green,  1915.  201  p. 

EBERSTADT,  RUDOLF. 

Handbuch  des  Wohnungswesens,  4th  Edition.  Jena,  Gustav  Fischer, 
1920.  735  p.  (Bibliography  at  end  of  each  section.  Text  of  Prussian 
Housing  Law  of  1918.) 

ELY,  RICHARD  T. 

Property  and  Contract  in  Their  Relations  to  the  Distribution  of 
Wealth.  New  York,  Macmillan,  1914.  2  yols. 

Outlines  of  Land  Economics.  Privately  printed  by  Edwards  Brothers, 
Ann  Arbor,  Mich.,  1922. 

GREAT  BRITAIN.     Ministry  of  Health. 

Report  of  the  South  Wales  Regional  Survey  Committee.  London, 
H.  M.  Stationery  Office,  1921.  80  p. 

LEWIS,  NELSON  P. 

The  Planning  of  the  Modern  City.     New  York,  Wiley,  1916.    423  p. 

NOLEN,  JOHN. 

City  Planning;  a  Series  of  Papers  by  Seventeen  Experts  Presenting 
the  Essential  Elements  of  a  City  Plan,  Edited  by  John  Nolen.     New 
York,  Appleton,  1916.    447  p.    National  Municipal  League  Series. 
New  Ideals  in  the  Planning  of  Cities,  Towns  and  Villages.    New 
York,  American  City  Bureau,   1919,     138  p. 

ROBINSON,  CHARLES  M. 

Gty  Planning,  with  Special  Reference  to  the  Planning  of  Streets 
and  Lots.  New  York,  Putnams,  1916.  344  p. 

STUEBBEN,  J. 

Der  Stadtebau,  2d  Edition.  Leipzig,  T.  M.  Gebhardt,  1907.  (Con- 
tains extensive  bibliographies,  and  the  text  of  many  foreign  statutes, 
ordinances,  etc.) 

UNWIN,  RAYMOND. 

Town  Planning  in  Practice ;  an  Introduction  to  the  Art  of  Designing 
Cities.  Revised  Edition.  London,  T.  F.  Unwin,  1913  and  1919. 

608 


BIBLIOGRAPHY  609 

WALPOLE,  MASS.,  Town  Planning  Committee.  (Charles  S.  Bird,  Chair- 
man.) 

Town  Planning  for  Small  Communities.  New  York,  Appleton,  1917. 
492  p.  National  Municipal  League  Series. 

ZUEBLIN,  CHARLES. 

American  Municipal  Progress,  New  and  Revised  Edition.  New  York, 
Macmillan,  1916.  522  p. 

Legal  Basis 

Corpus  Juris.  New  York,  American  Law  Book  Co.,  1914  (v.  i).  27 
vols.  (Subsequent  volumes  appearing  at  intervals.  Supplement,  1921, 
i  vol.) 

Cyclopedia  of  Law  and  Procedure.  New  York,  American  Law  Book 
Co.,  1901-1912.  40  vols.  Supplements  1913,  1914-1918.  2  vols.  Index. 

1  vol. 
FREUND,  ERNST. 

Police   Power.     Chicago,   Callaghan   &   Co.,    1904.    819  p. 
GOODNOW,  FRANK  J. 

Social  Reform  and  the  Constitution.    New   York,   Macmillan,   1911. 

365  P- 

GREAT  BRITAIN.    Laws. 

The  Laws  of  England.    London,  Butterworth,   1907.    31   vols.    Sup- 
plement, 1921.     i  vol.     (Gives  text  of  statutes,  with  annotations.) 
The    Legislation    of    the    Empire,    1898-1907.     London,    Butterworth, 
1909.    4  vols.     (Gives  text  of  statutes,  with  annotations.) 

LEWIS,  JOHN. 

Law  of  Eminent  Domain  in  the  United  States,  3d  Edition.  Chicago, 
Callaghan  and  Co.,  1909.  2  vols. 

McQuiLLiN,  EUGENE. 

Municipal  Corporations.  Chicago,  Callaghan  &  Co.,  1911.  6  vols. 
Supplement  1921.  2  vols. 

MEREDITH,  SIR  WILLIAM  R.,  editor. 

Municipal  Manual.  Toronto,  Canada  Law  Book  Co. ;  Philadelphia, 
Cromarty  Law  Book  Co.,  1917.  (Text  of  statutes  relating  to  Canadian 
municipal  corporations  and  public  utilities.  Author  is- Chief  Justice 
of  Canada.) 

MFNRO,  WILLIAM  B. 

Principles  and  Methods  of  Municipal  Administration.  New  York, 
Macmillan,  1916,  491  p. 

NICHOLS,  PHILIP. 

Law  of  Eminent  Domain.    Albany,  Matthew  Bender  and  Co.,   1917. 

2  vols. 
THAYER,  J.  B. 

Cases  on  Constitutional  Law.  Cambridge,  Mass.,  Charles  W.  Sever, 
1894,  1895.  2  vols.  in  4  pts.  (Police  Power,  Ch.  5.) 


PART  II 

PLANNING  THE  CITY  AS  A  WHOLE 

ADAMS,  THOMAS. 

The  Need  of  Town  Planning  Legislation  and  Procedure  for  Control 
of  Land  as  a  Factor  in  House-building  Development.  Journal  of 
American  Institute  of  Architects,  Feb.-March,  1918,  v.  6,  pp.  68-70; 
135-137. 


610  BIBLIOGRAPHY 

ALDRIDGE,  H.  R. 

Compulsory  Town  Planning;  Paper  Read  Before  the  Town  Planning 
Institute.  Garden  Cities  and  Town  Planning,  Feb.,  1916,  v.  6,  pp. 
25-32. 

BASSETT,  EDWARD  M. 

Constitutional  Limitations  on  City  Planning  Powers.     In  Proceedings 
of  9th  National  Conference  on  City  Planning,  1917,  pp.  199-214, 
A  Survey  of  the  Legal  Status  of  a  Specific  City  in  Relation  to  City 
Planning.     In  Proceedings  of  5th  National  Conference  on  City  Plan- 
ning, 1913,  pp.  46-68. 

CONRAD,  J. 

Handworterbuch  der  Staatswissenschaften,  3d  Edition.  Jena,  Gustav 
Fischer,  1911.  8  vols.  (See  especially  the  titles:  Wohnungsf  rage ; 
Zusammenlegung;  Baupolizei ;  Stadterweiterungen.  New  edition  is 
now  being  published  in  sections.) 

GARLICK,  J. 

The  Principles  of  Town  Planning  Legislation.  In  Proceedings  of 
Second  Australian  Town  Planning  Conference  and  Exhibition,  1918, 
PP.  95-99- 

McBMN,  HOWARD  L.  • 

American  City  Progress  and  the  Law.  New  York,  Columbia  Uni- 
versity Press,  1918.  269  p. 

The  Law  and  the  Practice  of  Municipal  Home  Rule.  New  York, 
Columbia  University  Press,  1916.  724  p. 

MASSACHUSETTS  FEDERATION  OF  PLANNING  BOARDS. 

Massachusetts  City  and  Town  Planning  Law.  48  p.  Bulletin  No. 
9,  August,  1921. 

NATIONAL  CONFERENCE  ON  CITY  PLANNING. 

Proceedings,  issued  annually,  I9io-date,  by  the  Conference,  except 
the  first  (1909),  which  is  U.  S.  Congress,  6ist,  2d  Session,  Senate 
doc.  422. 

SHURTLEFF,  FLAVEL,  and  FREDERICK  LAW  OLMSTED. 

Carrying  Out  the  City  Plan.  New  York,  The  Survey  Associates, 
1914.  349  p.  (Russell  Sage  Foundation  Publications.)  (Appendix, 
giving  laws  and  decisions,  pp.  211-334.) 

UNION  INTERNATIONAL  DES  VILLES  (3  bis  Rue  de  la  Regence,  Belgium). 
Premier  Congres  International,  Brussels,  1913.  1004  p.  (The  Union 
is  compiling  information  with  regard  to  civic  matters  in  all  countries.) 

WRITTEN,  ROBERT  H. 

The  Constitution  and  Powers  of  a  City  Planning  Authority.  In  Pro- 
ceedings  of  the  7th  National  Conference  on  City  Planning,  1915,  pp. 
135-143;  Results  of  Questionnaire,  pp.  274-299. 

WILLIAMS,  FRANK  BACKUS. 

Enforcing  the  City  Plan.  National  Municipal  Rnww,  July,  1921,  v. 
io,  pp.  374-377- 

The  Law  of  the  Gty  Plan.  Supplement  to  National  Municipal  AVTiVtr, 
Oct.,  1920,  v.  ii,  pp.  663-690.  (A  second,  revised  edition  is  in  press.) 
Some  Aspects  of  City  Planning  Administration  in  Europe.  In  Pro- 
ceedings of  7th  National  Conference  on  City  Planning,  1915,  pp.  144- 
154. 


BIBLIOGRAPHY  6n 


PART  III 

PLANNING  THE  PUBLIC  FEATURES 

Acquiring  Land 
BAUMEISTER,  R.,  J.  CLASSEN  and  J.  STUEBBEN. 

Die    Umlegung    Stadtischer    Grundstiicke    und    die    Zonenenteignung. 
Berlin,  E.  Toesche,  1897.     152  p.     Verband  deutsch  Arch,  und  Ingen. 

— Ver.    Denkschriften,  Heft  2.      (Gives    text    of    principal    foreign 

statutes.) 
CHICAGO  BUREAU  OF  PUBLIC  EFFICIENCY 

Excess  Condemnation ;  Why  the  City  of   Chicago   Should  Have  the 

Power,  in  Making  Public  Improvements,  to  Take  Property  in  Excess 

of  Actual  Requirements.     1918.     58  p. 
CREPON,  T. 

Code  Annote   de   1'Expropriation  pour   Cause  d'Utilite   Publique,  2d 

Edition.    Paris,  A.  Chevalier-Marescq  &  Cie.,  1899.    584;  230  p. 
CUSHMAN,  R.  E. 

Excess  Condemnation.     New  York,  Appleton,  1917.     323  p. 

National  Municipal  League  Series.     (Bibliography,  pp.  311-314. 

Gives  text  of  American   statutes  and  constitutional  provisions.) 
CRIPPS,  C.  A. 

A  Treatise  on  the  Principles  of  the  Law  of  Compensation,  5th  Edition. 

London,  Stevens  &  Sons,  1905.    574  p. 
EHLGOTZ,  — . 

Ueber  Grundstucksumlegungen.    Zeitschrift  der  Stadtebau,  1917,  Heft 

4-5,  P-  38. 
FRANCE.    Assemblee  Nationale.     Senate. 

Rapport    Fait    au    Nom    de    la    Commission    Chargee    d'Examiner    le 

Projet  de  Loi  Portant  Modification  a  la  Loi  du  3  Mai  1841  sur  1'Ex- 

propriation  pour  Cause  d'Utilite  Publique,  by  M.  Jeanneney.     Paris, 

1917.     108  p. 
GREAT  BRITAIN.    Committee  Dealing  with  the  Law  and  Practice  Relating 

to  the  Acquisition  and  Valuation  of  Land  for  Public  Purposes. 

Reports  1-4.    London,  H.  M.  Stationery  Office,  1918-19.     [Cd.  8998, 

9229.]      [Cmd.  156,  424.] 
GREAT  BRITAIN.     Ministry  of  Health.     Committee  on  Unhealthy  Areas. 

Interim  Report,  London,  H.  M.  Stationery  Office,  1920.     10  p. 

Second  and  Final  Report,  1921.    24  p. 
GREAT  BRITAIN.     Land  Enquiry  Committee. 

Report.     In  The  Land,  London,  1914,  v.  n,  p.  289  ff. 
HALBWACHS,  MAURICE. 

Les  Expropriations  et  le  Prix  de  Terrains  a  Paris  (1860-1900).    Paris, 

Ed.  Comely  &  Cie.,  1909.    416  p. 
ILLINOIS.    Legislative  Reference  Bureau. 

Eminent  Domain  and   Excess   Condemnation.    Illinois  Constitutional 

Convention,  Bulletin  No.  7,  1920. 
LAYER,  MAX. 

Principien    des    Enteignungsrechtes.     Leipzig,    Duncker    &    Humblot, 

1902.     660  p.    Stoats  und  volkerrechtliche  Abhandlungen,  Band  3. 
MASSACHUSETTS.     Constitutional    Convention,    1917-1918. 

Excess  Condemnation.    Bulletin  No.  19. 
MASSACHUSETTS.     Legislative  Committee  on  Eminent  Domain. 

Report,  Dec.  29,   1903.     Boston,   State   Printers,   1904.     101   p.    Mass. 

General  Court,  1904,  House  doc.  No.  288. 


612  BIBLIOGRAPHY 

Supplementary  Report,  Feb.  29,  1904.  16  p.  Mass.  General  Court, 
1904,  House  doc.  No.  1096. 

MASSACHUSETTS.    Commission  on  Uniform  Methods  of  Taking  Land  for 
Public  Purposes. 

Report  Relative  to  Taking  Land  for  Public  Purposes.     Boston,  State 
Printers,  1915.   70  p.   Mass.  General  Court,  1915,  House  doc.  No.  1851. 
Supplementary  Report,  1916.    Mass.  General  Court,  1916,  House  doc. 
No.  1750.     (Gives  draft  of  proposed  act.) 
MERCHANTS'  ASSOCIATION  OF  NEW  YORK. 

Cost  of  Condemnation  Proceedings  and  Analysis  of  References,  com- 
piled and  published   by   the   Merchants'   Association   of    New   York, 
Dec.,  1903.    67  p. 
MUNRO,  W.  B. 

Land  Taking  for  Public  Improvements;  Excess  Condemnation.  In 
his  Bibliography  of  Municipal  Improvement,  Cambridge,  Harvard 
University  Press,  1915,  pp.  136-139. 

NEW  YORK  CITY.    Committee  on  Taxation. 

Excess  Condemnation  .  .  .  with  a  Report  Prepared  by  H.  S.  Swan  for 
the  National  Municipal  League.  New  York,  1915.  122  p.  (Gives 
text  of  American  statutes  and  constitutional  provisions.) 

OLMSTED  BROTHERS. 

Methods  of  Condemnation  of  Park  Lands.  Park  and  Cemetery,  Dec., 
IQIS,  PP-  300-302.  (From  a  report  on  a  proposed  parkway  system  for 
Essex  County,  N.  J.f  1915,  pp.  17-20.) 

PANDECTES,    FRANCHISES.    Paris,    Librairie   du   Conseil   d'Etat   et   de    la 
Societe  de  Legislation  Comparee.     1905.    59  vols. 
Supplements.     Paris,  1907-09.    4  vols.    Article  on  Expropriation  pour 
Cause  d'Utilite  Publique,  v.  31,  pp.  1-329;  supplementary  volume  2,  pp. 
676-692. 

ROBIN,  RAYMOND. 

Manuel  de  1'Expropriation  pour  Cause  d'Utilite  Publique.  Paris,  Ad- 
ministration du  Journal  des  Notaires  et  des  Avocats,  1917,  215  p.  with 
Supplement,  1919.  (Gives  text  of  French  statutes.) 

SEYDEL,  F. 

Das  Gesetz  iiber  die  Enteignung  von  Grundeigentum  yom  n  Juni  1874 
mit  Benutzung  der  Akten  des  Koniglichen  Ministeriums  der  offent- 
lichen  Arbeiten  fur  den  praktischen  Gebrauch.  Berlin,  C.  Heymanns 
Verlag,  1911.  348  p. 

STUEBBEN,  J. 

Die  purchfiihrung  von  Stadterweiterungen  mit  besonderer  Beruck- 
sichtigung  der  Eigentumsverhaltnisse.  Berlin,  Ernst,  1908.  26  p. 
Stddtebauliche  Vortrage,  Bd.  I,  Heft  6. 

WACHORN,  THOMAS. 

The  Law  Relating  to  the  Compulsory  Taking  of  Land  by  Public  Com- 
panies and  Local  Authorities,  2d  Edition,  Enlarged.  London,  Effing- 
ham  Wilson,  1906.  129  p.  H'ilson's  Legal  Handy  Books. 

WARNER,  JOHN  DEWrrr. 

Report  on  Scope  and  Limits  of  Expropriation,  "Incidental"  vs. 
"Excess"  Condemnation.  Submitted  by  Calvin  Tompkins,  Commis- 
sioner of  Docks,  May,  1912.  30  p.  New  York  City.  Dept.  of  Docks 
and  Ferries,  No.  19. 

WILLIAMS,  FRANK  BACKUS.  , 

A  Review  of  Excess  Condemnation  in  the  United  States.  In  his 
Akron  and  Its  Wanning  Law,  1919,  pp.  12-16. 

See  also  Part  I  (Legal  Basis). 


BIBLIOGRAPHY  613 

PUBLIC  UTILITIES 

AMERICAN  ACADEMY  OF  POLITICAL  AND  SOCIAL  SCIENCE. 

Public   Policies  as  to  Municipal   Utilities.    Annals  of  the  Academy, 
Jan.,  1915,  v.  57,  PP-  1-357- 

DILLON,  J.  F. 

Law  of  Public  Utilities.  In  his  Commentaries  on  the  Law  of 'Munici- 
pal Corporations,  5th  edition,  1911,  pp.  2088-2308. 

KING,  CLYDE  L.,  editor. 

Regulation  of  Municipal  Utilities.  New  York,  Appleton,  1912.  404  p. 
National  Municipal  League  Series.  (Select  bibliography,  pp.  387-391.) 

STEVENS,  DON  LORENZO. 

The  Bibliography  of  Municipal  Utility  Regulation  and  Municipal 
Ownership.  410  p.  Cambridge,  Harvard  University  Press,  1918. 
Harvard  Business  Studies,  v.  4. 

WILCOX,  DELOS  F. 

Analysis  of  the  Electric  Railway  Problem ;  Report  to  the  Federal  Elec- 
tric Railways  Commission  with  Summary  and  Recommendations,  Sup- 
plemented by  Special  Studies  of  Local  Transportation  Issues  in  the 
State  of  New  Jersey  and  the  City  of  Denver,  with  Notes  on  Recent 
Developments  in  the  Electric  Railway  Field.  New  York,  Published  by 
the  author,  1921.  789  p. 

Municipal  Franchises;  a  Description  of  the  Terms  and  Conditions 
Upon  Which  Private  Corporations  Enjoy  Special  Privileges  in  the 
Streets  of  American  Cities.  New  York,  McGraw-Hill,  1910-1911.  2 
vols. 

STREETS — TRAFFIC — SETBACKS 

BOSTWICK,  ANDREW  L.  Municipal  Control  of  Street  Planning;  The  Con- 
trol of  Sub-divisions  and  Outlying  Districts  by  Municipal  and  State 
Authorities.  Municipal  Journal,  New  York,  July  29,  1915,  v.  39,  pp. 
145-147. 

BROWN,  CHARLES  C. 

Traffic  Laws  and  Highway  Maintenance  and  Construction.  Municipal 
Journal,  New  York,  April  20,  27,  1918,  v.  44,  pp.  325-326;  344-345. 

BROOKLINE,  MASS.    Planning  Board. 

Building  Lines.  In  Annual  Report  of  the  Board,  1915.  Also  in  Land- 
scape Architecture,  Oct.,  1916,  v.  7,  pp.  22-26. 

EDWARDS,  PERCY  J. 

History  of  London  Street  Improvements,  1855-1897.  London,  P.  S. 
King  and  Son,  1898.  313  p.  London  County  Council. 

ENO,  WILLIAM  P. 

The  Science  of  Highway  Traffic  Regulation,  1889-1920.  New  York, 
Brentano's,  1920.  99  p. 

LEWIS,  NELSON  P. 

Street  Widening  to  Meet  Traffic  Demands.  In  Proceedings  of  9th 
National  Conference  on  City  Planning,  1917,  pp.  43~59- 

NATIONAL  CONFERENCE  ON  CITY  PLANNING. 

Enforcing  an  Official  City  Plan  for  Streets  as  a  Police  Power  Regu- 
lation. Boston,  The  Conference,  1922.  5  p.  Bulletin  No.  2. 

PRICHARD,  CHARLES  B. 

Legal  Aspects  of  Traffic  Control.  In  Proceedings  of  I3th  National 
Conference  on  City  Planning,  1921,  pp.  137-146. 


6i4  BIBLIOGRAPHY 

SHURTLEFF,  FLAVEL. 

Building  Lines.    In  Proceedings  of  the  Fourth  Annual  City  and  Town 

Planning  Conference  of  Massachusetts  Planning   Boards,   1916,  pp. 

21-29;  with  discussion. 
TUTTLE,  ARTHUR  S. 

The  Enforcement  of  a  Street  Plan.    In  Proceedings  of  ijth  National 

Conference  on  City  Planning,  1921,  pp.  70-81. 


PART   IV 

PLANNING  THE  PRIVATE  FEATURES 
General 

NATIONAL  HOUSING  ASSOCIATION. 

Housing    Problems    in    America.    Proceedings    of    the    Association, 

issued  annually,  ign-Jate. 
PREMIER  CONGRES  INTERNATIONAL  ET  EXPOSITION  COMPAREE  DES  VILLES, 

1913.     Proceedings.     Bruxelles,  Union  Internationale  des  Villes,  1914. 

var.  p. 
WILLIAMS,  FRANK  BACKUS. 

Public  Control  of   Private   Real   Estate.     In  Nolen,  John,  ed.,  City 

Planning,  1916,  pp.  48-87.     (Contains  bibliography.) 
Note :  The  Proceedings  of  the  various  National  and  International  Housing 

Congresses,  held  in  Europe  at  intervals  for  many  years,  should  be 

consulted. 

BUILDING  REGULATIONS 

EBERSTADT,  RUDOLF. 

Handbuch  des  Wohnungswesens,  4th  edition.    Jena,  Gustav  Fischer, 

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HOLLIDAY,  A.  C. 

Restrictions    Governing    City    Development :     Building    Heights    for 

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31  P- 
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A  List  of  References  on  the  Housing  Problem.    Compiled  by  Louis 

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43  P. 


BIBLIOGRAPHY  615 

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ZONING 

ACKERMAN,  FREDERICK  L. 

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Property  Values,  Public  Safety,  and  Public  Health,  by  Lawson  Purdy, 

Harland  Bartholomew,  Edward  M.  Bassett,  Andrew  Wright  Crawford, 

Herbert  S.  Swan.    Washington,  June,  1920.    48  p.     Series  II,  No.  15, 

June  30,  1920. 
BALL,  CHARLES  B. 

The   Health  Value  of  City  Zoning.    National  Real  Estate  Journal, 

April  10,  1922,  v.  23,  pp.  20-25. 
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Series  of  Articles  by  Jefferson  C.  Grinnalds,  beginning  Oct.  8,  1920, 

v.  8,  No.  19,  pp.  4-5.    What  is  Zoning?    Why  Should  We  Have  It? 
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Zoning  in  the  Location  of   Public  Parks.    Park  International,  July, 

1920,  v.  i,  pp.  56-59. 
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New  York,  Revised  Edition,   1922.     25  p.     (Contains  tables  of  deci- 
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March,  1922,  v.  26,  p.  230. 

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3I5~34I-      National    Municipal    League,    Technical    Pamphlet    Series 

No.  5. 

Zoning  vs.  Private  Restrictions.    National  Real  Estate  Journal,  Jan.  2, 

1922,  v.  23,  p.  26. 


616  BIBLIOGRAPHY 

BAUMEISTER,  R. 

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BOYD,  JOHN  TAYLOR,  JR. 

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CHENEY,  CHARLES  H. 

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DAVIS,  EARL  H.,  compiler. 

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FLUGGE,  K. 

Grossstadtwohnungen  und  Kleinhaussiedelungen.  Jena,  Gustav 
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FORD,  GEORGE  B. 

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City.     New  York,  Lawyers  Mortgage  Co.,  1017.    36  p. 
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Zoning  Is  So  Logical  and  Reasonable  That  It  Must  Come  Sooner  or 
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GENZMKR,  E.,  and  KI'-MKH.   II. 

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BIBLIOGRAPHY  617 

HALDEMAN,  B.  ANTRIM. 

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LEWIS,  NELSON  P.  The  Planning  of  the  Modern  City.  New  York, 
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McBAiN,  HOWARD  L. 

Law  Making  by  Property  Owners.  Shall  the  Exercise  of  the  Police 
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MAYREDER,  K. 

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POND,  IRVING  K. 

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PRATT,  EDWARD  E. 

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SLOAN,  FRANCIS  P. 

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The  Law  of  Zoning ;  a  Review  of  the  Constitutionality  of  Zoning 
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618  BIBLIOGRAPHY 

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Typical  Reports  containing  illustrative  material,  proposed  ordinances, 

etc.,  have  been  issued  by :    Akron,  Ohio ;   Atlanta,  Ga. ;   Cambridge, 

Mass.;  Cleveland,  Ohio;  Detroit,  Mich.;  Milwaukee,  Wis. ;  Portland. 

Ore.;  St.  Louis,  Mo.;  San  Francisco,  Calif.;  Washington,  D.  C,  and 

other  cities. 


PART  V 

CITY   PLANNING  FINANCE 

ASSESSMENTS — GENERAL 
ADAMS,  THOMAS. 

Municipal  and  Real  Estate  Finance  in  Canada;  The  Need  of  Town 
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FlLLEBROWN,    CHARLES    B. 

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ASSESSMENTS  ON  LAND  VALUE 

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COX-SINCLAIR,  E.  S.,  and  THOMAS  HYNES. 

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620  BIBLIOGRAPHY 

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ASSESSMENTS — SPECIAL 

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INCREMENT  TAXATION 

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JOHNSON,  J.  F. 

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Hof-Verlag,  1912.  151  p. 

SWAN,  HERBERT  S. 

The  Unearned  Increment  in  Lackawanna.  National  Municipal  Re- 
view, March,  1919,  v.  8,  pp.  113-118. 


PART  VI 

PLANNING  FOR  THE  PROMOTION  OF  BEAUTY 
Legal  Means  and  Accomplishment 

Art  Commissions,  City  and  State.  Report  of  a  Committee  Appointed  at 
a  Conference  of  Members  of  Art  Commissions,  in  New  York,  Dec., 
1913.  23  p. 

BONNIER,  Louis. 

Les  Reglements  de  Voirie.     Paris,  Charles  Schmid,  1903.    95  p. 

BOYD,  JOHN  TAYLOR,  JR. 

The  New  York  Zoning  Resolution  and  Its  Influence  upon  Design. 
Architectural  Record,  Sept.,  1920,  v.  48,  pp.  193-217. 

EMBURY,  AYMER,  II. 

New  York's  New  Architecture.  Architectural  Forum,  Oct.,  1921, 
v.  35,  PP-  119-124. 

EMERICH,  HEINRICH. 

Der  Schutz  des  Ortsbildes ;  das  Elsass-Lothringische  Landesgesetz 
betreffend  baupolizeiliche  Vorschriften  vom  7  November  1910  .  .  .  , 
sowie  das  Ortstatut  und  die  Verordnung  zum  Schutze  des  Ortsbildes 
von  Strassburg  vom  23  Nov.  1910.  Strassburg,  Trubner,  1911.  150  p. 

FERRISS,  HUGH. 

The  New  Architecture :  Evolution  of  City  Building  under  the  Zoning 
Law.  New  York  Times  Book  Review  and  Magazine,  Mar.  19,  1922, 
pp.  8-9 ;  27. 

HOLLIDAY,   A.    C. 

Restrictions    Governing    City    Development;    Building    Heights    for 

Monumental   and    Commercial    Structures.     Town   Planning   Review, 

July,  1921,  v.  9,  pp.  77-98. 
Laws  Relating  to  Art  Commissions,  Printed  for  the  Art  Commission  of 

the  City  of  New  York,  May,  1914,  53  p. 
LORTSCH,  CHARLES. 

La  Beaute  de  Paris  et  la  Loi.    Paris,  Librairie  Bernard  Tignol,  1911. 

175  P. 

MAGNY,  CHARLES. 

La  Beaute  de  Paris.     Paris,  Librairie  Bernard  Tignol,  1911.    370  p. 

PARIS.     Conseil  Municipal. 

Proposition  Relative  aux  Aspects  de  Paris  et  a  J'Observation  des  Lois, 
Reglements  et  Servitudes  Concernant  le  Style  et  la  Hauteur  des 
Maisons,  Presentee  par  M.  fimile  Massard.  Paris,  Imprimerie  Munici- 
pale,  1909.  44  p. 

Note  Complementaire  a  1'Appui  de  la  Proposition  Relative  aux  Aspects 
de  Paris,  au  Style  et  a  la  Hauteur  des  Maisons,   Presentee  par  M. 
fimile  Massard.     Paris,  Imprimerie  Municipale,  1909.    43  p. 
Recueil  d'Actes  Administratifs  et  de  Conventions  Relatifs  aux  Servi- 
tudes Speciales  d'Architecture.     Ville  de  Paris,  1905. 


622  BIBLIOGRAPHY 

POND,  IRVING  K. 

Zoning  and  the  Architecture  of  High  Buildings.  Architectural 
Forum,  Oct.,  1921,  v.  35,  pp.  131-135. 

(Saxony.) 

Allgemeines  Baugesetz,  edited  by  A.  Rumpelt,  4th  ed.  Leipzig,  Rpss- 
berg'sche  Verlagsbuchhandlung,  1911.  426  p.  Juristische  Handbibli- 
othek  No.  326.  (With  introduction  and  notes.  The  discussion  of 
aesthetic  regulations  is  especially  full.) 

(Saxony.) 

Das  Kgl.  Sachs.  Gesetz  gegen  die  Verunstaltung  von  Stadt  und 
Land,  edited  by  P.  Adolf.  Leipzig,  Rossberg'sche  Verlagsbuchhand- 
lung, 1909.  189  p.  (Gives  text  of  many  of  foreign  and  most  of 
German  laws  against  disfigurement.) 

OUTDOOR  ADVERTISING 

ADAMS,  THOMAS. 

By-Laws  Relating  to  Billboards  and  Signs.  Conservation  of  Life 
(Canada),  April,  1918,  v.  4,  pp.  41-42. 

AMERICAN   Civic  ASSOCIATION.    Department  of   Nuisances. 

The  Billboard  Nuisance.  Edited  by  C.  R.  Woodruff.  Philadelphia, 
1908.  48  p.  Series  2,  No.  2. 

Cnnc  LEAGUE  OF  ST.  Louis.    Signs  and  Billboards  Committee. 

Billboard  Advertising  in  St.  Louis;  Report  of  the  Committee,  1910. 
40  p. 

CRAWFORD,  ANDREW  WRIGHT. 

Important  Advances  Toward  Eradicating  the  Billboard  Nuisance. 
Washington,  American  Civic  Association,  1919.  32  p.  Series  II, 
No.  13. 

GREAT  BRITAIN.    Home  Office. 

Return  of  the  Laws  in  Force  in  France,  Germany,  Austria,  Italy, 
Belgium,  Holland,  Switzerland  and  the  United  States:  (i)  For  Regu- 
lating or  Restricting  the  Exhibition  of  Posters,  Bills  and  Other  Public 
Advertisements;  (2)  For  the  Taxation  of  Such  Advertisements. 
London,  1903.  40  p.  House  of  Commons  Paper  No.  323.  Accounts 
and  Papers,  1903.  Vol.  55. 

KANSAS  UNIVERSITY.     Municipal  Reference  Bureau. 

Regulation  of  Billboards  by  Kansas  Cities.  April  I,  1920.  Type- 
written MS.  12  p. 

McBAiN,  H.  L. 

American  City  Progress  and  the  Law.  New  York,  Columbia  Univer- 
sity Press,  1918.  269  p.  (Billboard  regulations,  pp.  76-91.) 

McFARLAND,  J.  HORACE. 

Illegal  Signs  in  Pennsylvania.  Washington,  American  Civic  Asso- 
ciation, 1914.  8  p.  Series  II,  No.  7;  Billboard  Bulletin  No.  3. 

MASSACHUSETTS.    Laws. 

Special  Report  Relative  to  the  Regulation  of  Billboards  and  Other 
Advertising  Devices  .  .  .  within  Public  View.  Feb.,  1920.  34  p. 
Mass.  General  Court,  1920,  House  doc.  1315. 

MASSACHUSETTS.    Commission  on  Taxation  of  Signs. 

Report,  Jan.,  1915.  25  p.  Mass.  General  Court,  1915,  House  doc. 
1637. 

MASSACHUSETTS.    Constitutional  Convention,  1917-18. 

Regulation  of  Billboards.  Boston,  State  Printer,  1919,  pp.  375-400. 
Bulletin  No.  31. 


BIBLIOGRAPHY  623 

MILLARD,  EVERETT  L. 

What  Chambers  of  Commerce  and  Realtors  Can  Do  to  Help  Abate 

the  Billboard  Nuisance.    American  City,  March,  1920,  v.  22,  pp.  276- 

278. 
NATIONAL  HIGHWAYS  ASSOCIATION. 

The  Billboard  Nuisance  in  New  York  City.     1916.    8  p.    Division  of 

Municipal  Art,  Pamphlet  No.  I. 
NEW  YORK  CITY.     Commissioner  of  Accounts. 

Report  on  an  Investigation  of   Billboard  Advertising  in   New  York 

City,  1912.     39  p. 
NEW  YORK   CITY.    Mayor's   Billboard  Advertising   Commission.    Report, 

2d  Printing,  1915.     151  p. 
(NEW  YORK)    MUNICIPAL  ART   SOCIETY  OF  NEW  YORK. 

The   Billboard   Blight,   What   To  Do  About  It.    22  p.    Bulletin  22, 

March,  1922. 
OLMSTED,  F.  L. 

Report  of  the  Committee  on  Checking  Abuses  of  Public  Advertising 

for  1902-03.    American  Park  and  Outdoor  Art  Association,  Reports, 

v.  7,  part  2,  1903,  pp.  25-32. 
Outdoor    Advertising   Abroad.     How    Foreign    Cities    Regulate,    Control, 

Restrict,   License,   Tax  and   Handle   Billboards.    Chautauquan,   1908, 

v.  51,  PP-  73-8i- 

S.  C.  A.  P.  A. 

A  Beautiful  World.  The  Occasional  Journal  of  the  Society  for 
Checking  the  Abuses  of  Public  Advertising  (Wimbledon,  Eng.)  1909- 
1913  (no  issues  since  War).  (Discussion  and  enactment  of  English 
billboard  legislation.  Contains  material  covering  other  countries.) 

SPRINGFIELD  (MASS.).     City  Planning  Commission. 

Report  on  Billboard  Advertising  in  Springfield,  1915.    23  p. 

TERRY,  T.  H. 

Constitutionality  of  Statutes  Forbidding  Advertising  Signs  on  Prop- 
erty. Yale  Law  Journal,  1914,  v.  24,  pp.  i-n. 

TINKHAM,  JULIAN  R. 

Advertising  is  Non-essential — Tax  It.  Upper  Montclair,  N.  J.  Printed 
by  the  author,  1918.  61  p. 

U.  S.  LIBRARY  OF  CONGRESS. 

List  of  References  on  Billboards.     1915.    Typewritten  MS.    8  p. 

WARMER,  J.  B. 

Advertising  Run  Mad.  Municipal  Affairs,  New  York,  1900,  v.  4, 
pp.  267-293.  (Contains  billboard  regulations  of  foreign  cities.) 


PART  VII 

PLANNING  ADMINISTRATION 

Australia 
READE,  CHARLES  C. 

Planning  and  Development  of  Towns  and  Cities  in  South  Australia; 
Report  by  the  Government  Town  Planner  .  .  .  Upon  Existing  Con- 
ditions and  Defects  and  the  Need  for  Town  Planning  Legislation 
Relating  Thereto  in  Conformity  With  The  Provisions  of  the  Town 
Planning  and  Development  Bill,  1919.  Adelaide,  Govt.  Printer,  1919. 
48  p. 
South  Australian  Town  Planning  and  Housing  Bill,  1916;  Report  and 


624  BIBLIOGRAPHY 

Synopsis  Relating  to  the  Principal  Proposals  Thereunder  Together 
with  the  Full  Text  of  the  Proposed  Enactment  as  Approved  by  the 
House  of  Assembly  on  Oct.  4,  and  Received  by  the  Legislative  Council 
on  Oct.  5,  1916;  Prepared  by  Mr.  Charles  C.  Reade  .  .  .  June,  1916. 
Adelaide,  Govt.  Printer,  1917.  40  p.  See  other  comments  in  Town 
Planning  Review,  Oct.,  1916,  v.  7,  pp.  79-80. 

Belgium 
EBERSTADT,  RUDOLF. 

Neue    Studien   iiber    Stadtebau   und   Wohnungswesen.    Jena,    Gustav 

Fischer,  1914.    2  vols :    I.  Belgium ;   II.  Holland. 
MAERTENS,  F. 

Legislation — Plans  d'Amenagement  et  Reglements  sur  les  Batisses  en 

Belgique.    La  Vie  Urbaine,  Sept.,  1919,  v.  i,  pp.  351-354. 

Canada 
ADAMS,  THOMAS. 

The  Beginnings  of  Town  Planning  in  Canada.  In  Proceedings  of  8th 
National  Conference  on  City  Planning,  1916,  pp.  222-230. 

BURLAND,    J.    H. 

A  Town  Planning  Act  for  Canada.     In  Proceedings  of  6th  National 

Conference  on  City  Planning,  1914,  pp.  133-179.     (Contains  draft  of 

Act  and  discussion  by  Thomas  Adams  and  others.) 
CANADA.    Commission  of  Conservation.     Report,   1915,  v.  6,  pp.  245-302. 

Appendix  i  (a)  :    Discussion  on  "A  Town  Planning  Act  for  Canada" ; 

Appendix  2:    Recent  Town  Planning  Progress  in  Maritime  Provinces. 
The   First  Canadian  Town-planning  Regulations.     Conservation  of  Life, 

Aug.,  1914,  v.  i,  pp.  14-16.     (Halifax,  N.  S.,  regulations.) 
The    Need    for    a    Town    Planning    and    Development    Act    in    Ontario. 

Conservation  of  Life,  March,  1917,  v.  3,  pp.  40-45. 

France 

AGACHE,  AUBURTIN  ET  REDONT. 

Comment  Reconstruire  Nos  Cites  Detruites,  2d  Edition.  Paris  Li- 
brairie,  A.  Colin,  1916.  257  p. 

AUBURTIN,  J.  M.,  and  HENRI  BLANCHARD. 

La  Cite  de  Demain  dans  les  Regions  Devastees.  Paris,  A.  Colin,  1917. 
317  P- 

DESPLAS,  M. 

Rapport  Fait  au  Nom  de  la  Commission  des  Dommages  de  Guerre 
Chargee  d'Examiner  le  Projet  et  les  Propositions  de  Loi  sur  la  Repa- 
ration des  Dommages  Causes  par  les  Faits  de  la  Guerre.  Paris, 
Imprimerie  de  la  Chambre  des  Deputes,  1916.  345  p.  Frante.  As- 
sembtt  Nationale  Chambre  des  Deputes,  Onsieme  Legislature,  Session 
de  1916,  No.  2345. 

FORD,  GEORGE  B. 

Recent  Laws  Affecting  Reconstruction  (in  France).  In  his  Out  of  the 
Ruins,  1919,  pp.  144-154. 

L'Urbanisme  en  Pratique,  Precis  de  I'Urbanisme  dans  Toute  son 
Extension  Pratique  Compared  en  Amerique  et  en  Europe.  Paris, 
Ernest  Leroux,  1920.  196  p.  Collection  "Urbanisme,"  Serie  C. 

FRANCE.    Laws. 

Laws  of  France,  1919.  Town  Planning  and  Reparation  of  Damages 
Caused  by  the  Events  of  the  War.  New  York,  National  Civic  Federa- 
tion, 1919.  51  p.  (Translation  by  Roscoe  Pound,  Dean  of  Harvard 
Law  School.) 


BIBLIOGRAPHY  625 

Le  Texte  de  la  Loi  du  Mars  1919  qui  est,  pour  la  France,  1'Equivalent 
de  Town  Planning  Act  Anglais  de  1909.    La  Vie  Urbaine,  Sept.,  1919, 
v.  i,  pp.  361-366. 
REYNALD,  M. 

Rapport  Fait  au  Nom  de  la  Commission  Chargee  d'Examiner  le 
Projet  de  Loi,  Adopte  par  la  Chambre  des  Deputes  sur  la  Reparation 
des  Dommages  Causes  par  les  Faits  de  la  Guerre.  166  p.  France. 
Assemblee  Nationale.  Senate.  Session  Ordinaire,  1917,  No.  315. 

Germany — General 

ADICKES,  FRANZ  (Mayor  of  Frankfort). 

"Stadterweiterungen."    In   Conrad's  Handworterbuch  der  Staatswis- 

senschaften.     (Contains  bibliography.) 
(Baden.)     Badische    Landesbauordnung,    Edited    by    Franz    Joseph    Roth. 

Karlsruhe,  1909.    619  p.     (Contains  many  valuable  notes.) 
BAUMEISTER,  R. 

Gemeinwohl    und    Sonderniitzen    in    Stadtebauleben.     Stadtebauliche 

Vortrage,  1918,  Bd.  8,  Heft  4. 
BORNHAK,  CONRAD. 

Verwaltungsrechtliches    im    Stadtebau.      Berlin,    Ernst,    1908.      17   p. 

Stadtebauliche  Vortrage,  Bd.  i,  Heft  3. 
EBERSTADT,  RUDOLF. 

Handbuch  des  Wohnungswesens,  4th  Ed.    Jena,  Gustav  Fischer,  IQ2(X 

735  P-     (Bibliography  at  end  of  each  section.) 
KISSAN,  B.  W. 

Report  of  Town  Planning  Enactments  in  Germany.    Bombay,  Govt. 

Press,  1913.    31  p. 
Kommunales  Jahrbuch.    Jena,  Gustav  Fischer,  1908-1913/14;  1919  (Kriegs- 

band).     (An  annual,   recording  current  municipal  events.     See  espe- 
cially the  subdivisions  "Stadtebau  und  Wohnungswesen"   (City  Plan- 
ning and  Housing).) 
(Prussia.)     ALEXANDER-KATZ,  PAUL. 

Ueber    preussisches    Fluchtlinienrecht.     Berlin,    Ernst,    1908.     31    p. 

Stadtebauliche  Vortrage,  Bd.  i,  Heft   7. 
(Prussia.)     BALTZ,  DR.  CONSTANZ. 

Preussisches    Baupolizeirecht,   4th    edition.    Berlin,    Carl    Heymann's 

Verlag,  1910.    677  p. 
(Prussia.)     JAMES,  HERMAN  GERLACH. 

Principles  of  Prussian  Administration.     New  York,  Macmillan,  1913. 

309  P. 
(Prussia.)     Wohnungsgesetz,  edited  by  B.  Schmittman.    Berlin,  T.  Gutten- 

tag,  1918.    274  p.     (Gives  the  text  of  Building  Line  Law  of  1875  and 

Housing  Law  of  1918,  with  notes.) 
(Prussia.)      SARAN,  WALTER,  editor. 

Baufluchtliniengesetz.      Gesetz    betreffend    die   Anlegung    und    Veran- 

derung  von  Strassen  und  Platzen  in  Stadten  und  landlichen  Ortschaf- 

ten  vom  2  Juli,  1875.     Berlin,  C.  Heymann's  Verlag,  1911.    452  p. 
(Wiirttemberg.)     Bauordnung,  edited  by  W.  Haffner.     Tubingen,  A.  u.  S. 

Weil,  2d  Edition.     1912.    3  vols.     (Vol.  i,  text  with  notes;  Vols.  2  and 

3,  related  statutes,  ordinances,  etc.) 

Germany — Metropolitan  Planning 

BRUHL,  LUDWIG,  and  others. 

Zweckverbandgesetz  fur  Gross  Berlin,  nebst  Abdruck  des  allgemeinen 
Zweckverbandgesetzes  by  Dr.  Ludwig  Briihl,  Dr.  Kurt  Gordon,  Dr. 
Walter  Ledermann.  Berlin,  T.  Guttentag,  1912.  (The  special  statute 


626  BIBLIOGRAPHY 

for  the  creation  of  a  metropolitan  district  of  Berlin  and  its  suburbs ; 
and  the  general  statute  for  the  creation  of  such  districts  in  Prussia. 
The  Berlin  statute  has  now  been  superseded  and  repealed  by  statute 
of  1920  (Gesets  Sammlung,  No.  19,  p.  123),  incorporating  Berlin  and 
her  suburbs  as  one  city. 
SCHMIDT,  R.  (Beigeordneter  or  Vice-Mayor  of  Essen). 

Denkschrift  betrcffend  Grundsatze  zur  Aufstellung  eines  General- 
Siedlungsplanes  fur  den  Regierungsbezirk  Diisseldorf  (rechtsrhein- 
isch).  Doctor's  dissertation,  privately  printed  about  1912.  104  p. 

Great  Britain — General 

ABERCROMBIE,  PATRICK. 

The  New  Town  Planning  Regulations.  Town  Planning  Review, 
July,  1921,  v.  9,  pp.  111-119.  (Discussion  of  the  Town  Planning 
Regulations,  1921,  issued  by  Ministry  of  Health  for  conduct  under 
the  1919  Act.) 

ALLAN,  CHARLES  E.,  and  FRANCIS  J. 

The  Housing  of  the  Working  Classes  Act,  1890-1909,  and  the  Hous- 
ing Acts  1914  Annotated  and  Explained  Together  with  Rules,  Regu- 
lations, Forms  and  Instructions  of  the  Local  Govt.  Board,  4th  Edition. 
London,  Butterworth  &  Co.,  Shaw  &  Sons,  1916.  408  p. 

CADBURY,  GEORGE,  JR. 

Town  Planning  with  Special  Reference  to  the  Birmingham  Schemes. 
London,  Longmans  Green,  1915.  (Text  of  Schemes,  pp.  155-198.) 

CLARKE,  J.  J. 

The  Housing  Problem;  Its  History,  Growth,  Legislation  and  Pro- 
cedure. London,  Pitman,  1920.  544  p.  (Gives  text  of  Housing, 
Town  Planning,  etc.,  Act,  1919,  and  Acquisition  of  Land  Assessment 
of  Compensation  Act,  1919.  Table  of  statutes,  pp.  523-524.  Bibli- 
ography, pp.  525-529-) 

Compulsory  Acquisition  of  Land  in  England  and  Wales ;  Recommenda- 
tions of  the  Reconstruction  Committee.  Municipal  Journal,  London, 
March  15,  1918,  v.  27,  pp.  289-290. 

DOWDALL,  H.  C. 

Local  Development  Law.  London,  T.  F.  Unwin,  1919.  230  p.  Liver- 
pool Corporation  Acts,  pp.  205-230. 

A  Garden  Cities  General  Powers  Bill.  Garden  Cities  and  Town  Planning, 
Dec.,  1921,  v.  ii,  p.  269. 

GLEN.  RANDOLPH  A.,  and  ARTHUR  D.  DEAN. 

The  Law  and  Practice  of  Town  Planning.  Being  Part  II  of  the 
Housing,  Town  Planning,  etc.,  Act,  1909;  with  Introduction,  Notes  to 
the  Act.  Departmental  Orders,  Memoranda  and  Circulars,  Forms  and 
Precedents,  and  Model  Clauses  for  Town  Planning  Schemes.  London, 
Butterworth,  1913.  283  p. 

GREAT  BRITAIN.    Laws. 

Housing,  Town  Planning,  etc.,  Act,  1919.  London,  H.  M.  Stationery 
Office,  1919.  44  p.  (Title:  An  Act  to  Amend  the  Enactments  Relat- 
ing to  the  Housing  of  the  Working  Classes,  Town  Planning,  and  the 
Acquisition  of  Small  Dwellings.) 

JEFFREYS,  W.  R. 

Some  Administrative  Problems.  Town  Planning  Institute,  Papers 
and  Discussions,  1917-1918,  v.  4,  pp.  97-99. 

The  New  Regulations  and  the  Future  of  Town  PI  nning;  Summary  of 
Town  Planning  Regulations,  1921.  Housihg,  April,  1921,  v.  2,  pp.  254; 
pp.  260-262,  (Results  of  passing  of  Housing,  Town  1'lanning,  etc. 
Act,  1919.) 


BIBLIOGRAPHY  627 

TOWN  PLANNING  CONFERENCE,  London,  1910. 

Transactions.     London,   Royal    Institute   of    British   Architects,    1911. 

812  p.     (Section   7:    Legislative   Conditions   and   Legal   Studies,   pp. 

661-701.) 
WOOD,  SIR  KINGSLEY. 

The   Law   and   Practice   with   Regard   to   Housing   in    England   and 

Wales.    London,  Henry  Frowde,  1921.    769  p.     (Gives  text  of  statutes, 

with  notes,  forms,  etc.) 

Great  Britain — Metropolitan  Planning 

CHURTON,  ANNETTE. 

The  Housing  and  Town  Planning  Act,  1909,  as  It  Affects  Rural 
Districts.  London,  P.  S.  King  &  Son,  n.  d.  (c.  1912).  12  p.  Our 
Land  Reprints,  4. 

Draft  Bill  for  the  Creation  of  One  Town  Planning  Traffic  and  Housing 
Authority  for  London  and  the  Home  Counties.  Discussion,  opened 
by  W.  Rees  Jeffreys.  Town  Planning  Institute,  Papers  and  Discus- 
sions, 1918-19,  v.  5,  pp.  39-78. 

GREAT  BRITAIN.     Local  Government  Board. 

Arterial  Roads  in  Greater  London.  Report  of  Sectional  Conferences 
Held  at  the  Offices  of  the  Local  Government  Board.  London,  H.  M. 
Stationery  Office.  First  Conference  Proceedings  published  May,  1914. 

GREAT  BRITAIN.     Select  Committee  on  Transport   (Metropolitan  Area). 
Report  .  .  .  Together  with  the  Proceedings  of  the  Committee,  Minutes 
of  Evidence,  and  Appendices.     London,  H.  M.  Stationery  Office,  1919. 
446  p. 

The  Manchester  and  District  Joint  Town  Planning  Advisory  Committee. 
Garden  Cities  and  Town  Planning,  April,  1921,  v.  II,  p.  103.  (Pur- 
pose and  functions  of  this  committee.) 

See  also  Publications  of  the  London  County  Council. 

Greece 
MAWSON,  JOHN  W. 

The  Salonika  Town  Planning  Act.  Town  Planning  Review,  Dec., 
1921,  v.  9,  pp.  147-154. 

India 

CALCUTTA  IMPROVEMENT  TRUST. 

Report  ...  on  the  Condition,  Improvement  and  Town  Planning  of 
the  City  of  Calcutta  and  Contiguous  Areas,  by  E.  P.  Richards.  Hert- 
fordshire, England,  Jennings  &  Bewlen,  Printers,  1914.  (Ch.  XX — 
Town  Planning  Legislation :  Including  Continental  and  Other  Town 
Planning  Acts,  with  Special  Translations  of  Italian  and  German  Acts.) 

DAVIDGE,  W.  R. 

The  Madras  Town  Planning  Act.  Garden  Cities  and  Town  Planning, 
July,  1921,  v.  n,  pp.  160-161.  (Discussion  of  the  1920  Madras  Act.) 

Italy 
CATTANEO,  MARIO. 

La  Legislation  Italiana  in  Materia  di  Piani  Regolatori  Edilizii.     Also 

trans. :  Italian  Legislation  Respecting  the  Planning  of  Building  Areas. 

In   Transactions   of   Town  Planning   Conference,  London,   1910,   pp. 

716-729. 
SANJUST  DI  TEULADA,  EDMONDO. 

Piano  Regolatore  della  Citta  di  Roma,  1908;    Relazione  Presentata  al 


628  BIBLIOGRAPHY 

Consiglio  Comunale  di  Roma  dall'Autore  del  Progetto.  Roma,  Sta- 
bilimento  Danesi,  1908.  57  p. 

VENICE.  Commissione  Ministerial  e  Municipale  Intorno  al  Piano  di 
Risanamento  ed  al  Piano  Regolatore.  Relazione  della  Commissione. 
Venice,  Ferd.  Onganie,  1891.  41  p. 

Scotland 

COOPER,  M.,  and  W.  E.  WHYTE. 

Law  of  Housing  and  Town  Planning  in  Scotland,  with  an  Appendix 
of  Statutes,  Orders,  Circulars  and  Memoranda.  Edinburgh,  Wm. 
Hodge  &  Co.,  Ltd.,  1920. 

Sweden 

The  Housing  Question  in  Sweden.  Report  of  Commissioners  to  Inter- 
allied Housing  and  Town  Planning  Conference,  London,  1920.  Stock- 
holm, Norstedt  &  Soner,  1920,  64  p. 

LlLIENBERG,   DR. 

Town  Planning  and  Legislation  in  Sweden  During  the  Last  Fifty 
Years.  In  Proceedings  of  Town  Planning  Conference,  London,  1910, 
pp.  702-715;  with  discussion. 

United  States — General 
See  Part  II,  "The  City  as  a  Whole." 

United  States — Planning  Commissions 

AMERICAN  INSTITUTE  OF  ARCHITECTS.    Cleveland  Chapter. 

Report  of  Special  Committee  of  the  Cleveland  Chapter  to  Recommend 
Legislation  for  the  Establishment  of  a  City  Plan  Commission. 
Journal  of  American  Institute  of  Architects,  May,  1914,  v.  2,  pp.  254- 

257. 

BAKER,  M.  N. 

City  Planning ;  Model  City  Charter.  In  Woodruff,  C.  R.,  Ed.,  A  New 
Municipal  Program,  1919,  pp.  218-227;  360-362.  (Special  reference  to 
city  planning  commissions.) 

FORD,  FREDERICK  L. 

The  Commission  on  the  City  Plan  at  Hartford,  Conn.  In  Proceedings 
of  sd  National  Conference  on  City  Planning,  1910,  pp.  172-177. 

Plan  Commission  Legislation.    City  Plan,  Jan.,  1916,  v.  i,  pp.  9-13. 

MASSACHUSETTS  FEDERATION  OF  PLANNING  BOARDS.  Bulletin  No.  i,  May, 
1916.  4  p.  Pt.  I :  The  Functions  of  Massachusetts  Planning  Boards. 
II :  The  official  plan. 

WHITTEN,  ROBERT  H. 

The  Constitution  and  Powers  of  a  City  Planning  Authority.  In  Pro- 
ceedings of  7\h  Xational  Conference  on  City  Planning,  1915,  pp.  135- 
143- 

WILLIAMS,  FRANK  BACKUS. 

The  Law  of  the  City  Plan.  Supplement  to  National  Municipal  Re- 
view, Oct.,  1920,  v.  ii,  pp.  663-690.  A  second,  revised  edition  is  in 
press. 

United  States — Cities 

'Akron,  Ohio.    NOLEN,  JOHN. 

City  Plan  for  Akron,  Prepared  for  Chamber  of  Commerce.  Cam- 
bridge, Mass.,  University  Press,  1919.  91  p.  (Contains  lc«al  sum- 


BIBLIOGRAPHY  629 

mary  published  in  full  in  pamphlet  by  Frank  Backus  Williams  en- 
titled "Akron  and  Its  Planning  Law,"  listed  below. 
WILLIAMS,  FRANK  BACKUS. 

Akron  and  Its  Planning  Law.  Akron  Chamber  of  Commerce,  1919. 
40  p. 

Bridgeport,  Conn,    NOLEN,  JOHN. 

Better  City  Planning  for  Bridgeport;  Some  Fundamental  Proposals 
to  the  City  Plan  Commission  .  .  .  with  a  Report  on  Legal  Methods 
of  Carrying  Out  the  Changes  Proposed  in  the  City  Plan  for  Bridge- 
port, by  Frank  Backus  Williams.  Bridgeport,  Conn.,  Brewer-Colgan 
Co.,  printers,  1916.  159  p. 

Chicago.    FISHER,  WALTER  L. 

Legal  Aspects  of  Plan  of  Chicago.  In  Burnham  and  Bennett,  Plan 
of  Chicago,  published  by  Commercial  Club,  1909,  pp.  125-156. 

East  Orange,  N.  J. 

Legal  Situation.  In  City  Plan  for  East  Orange,  New  Jersey,  1922, 
pp.  77-79- 

Hamilton,  Ohio.    BETTMAN,  ALFRED. 

Legal  Powers  Affecting  the  City  Plan  for  Hamilton.  In  Bartholomew, 
Harland,  City  Plan  for  Hamilton,  Ohio,  1920,  pp.  60-64;  66- 

Minneapolis.    ROCKWOOD,  C.  J. 

The  Legal  Problems.  In  Bennett,  E.  H.,  The  Plan  of  Minneapolis, 
1917.  PP-  211-221. 

New  York  City.    COMMITTEE  ON  CITY  PLAN. 

Development  and  Present  Status  of  City  Planning  in  New  York 
City.  Report  Together  with  Papers  Presented  at  Meeting  of  Advisory 
Commission  on  City  Plan,  Dec.  17,  1914.  76  p. 

BASSETT,  EDWARD  M. 

A  Survey  of  the  Legal  Status  of  a  Specific  City  in  Relation  to  City 
Planning.  In  Proceedings  of  5th  National  Conference  on  City  Plan- 
ning, 1913,  pp.  46-68. 

See  also  Part  IV,  Zoning,  and  Part  VI. 

United  States — Metropolitan  Planning 

COHEN,  JULIUS  H. 

Developing    Port    Facilities    by    Interstate    Compact    and    Agencies; 
Being  Reprint  of  Paper  Read  Before  Section  of  Public  Utility  Law 
of  American  Bar  Association,  August  30,  1921.     15  p. 
The  New  York  Harbor  Problem  and  Its  Legal  Aspects.    Cornell  Law 
Quarterly,  May,  1920,  pp.  373-408.    Also  reprinted. 

(Los  Angeles.)     REGIONAL  PLANNING  CONFERENCE. 
Proceedings  of  First  Conference,  1922.    24  p. 

MASSACHUSETTS.     Joint   Board   on   Metropolitan   Improvements. 

Final  Report.  Boston,  State  Printers,  1911.  145  p.  (Mass.  General 
Court,  1911,  House  doc.  1550.)  (Popularly  known  as  "Big  Four" 
Report:  See  Landscape  Architecture,  April,  1912,  v.  2,  p.  114. 

MASSACHUSETTS.  Metropolitan  Improvements  Commission.  Report,  1909. 
Boston,  State  Printers,  1909.  318  p. 

MASSACHUSETTS.  Metropolitan  Plan  Commission.  Report,  1912.  Boston, 
State  Printers,  1912.  61  p.  Mass.  General  Court,  1912,  House  doc. 
1615. 

(New  York)  PORT  OF  NEW  YORK  AUTHORITY. 

Report  with  Plan  for  the  Comprehensive  Development  of  the  Port 
of  New  York,  Dec,  21,  1921.  Albany,  State  Printers,  1921.  56  p. 


6jo  BIBLIOGRAPHY 

NEW  YORK,  NEW  JERSEY  PORT  AND  HARBOR  DEVELOPMENT  COMMISSION. 

Joint    Report     with     Comprehensive     Plan     and     Recommendations. 

Albany,  J.  B.  Lyons  Co.,  1920.    495  p. 
WOOBSTON,  HOWARD  B. 

Municipal  Zones;  a   Study  of  the  Legal   Powers  of   Cities   Beyond 

Their  Incorporated  Limits.    National  Municipal  Revizw,  July,   1914, 

v.  3,  PP-  465-473. 

ADDENDUM 
UNWIN,  RAYMOND. 

Zoning  Proposals.    London,  Town  Planning  Institute,  1922.    pp.  115- 
133 


TABLES  OF  STATUTES 

I.    PLANNING  THE  CITY  AS  A  WHOLE 

A.  APPROVAL  OF   PLATS   A   PREREQUISITE  TO  RECORD 

B.  CITY   PLAN 

II.    PLANNING  THE  PUBLIC  FEATURES 

A.  EXCESS  CONDEMNATION 

B.  SET  BACKS 

III.  PLANNING  THE  PRIVATE  FEATURES 

A.    ZONING 

IV.  PLANNING  FOR  THE  PROMOTION  OF  BEAUTY 

A.      OUTDOOR   ADVERTISING 

a.  Taxation  or  Regulation 

b.  Prevention  of  Disfigurements 

V.    PLANNING  ADMINISTRATION 

A.  PLAN  COMMISSIONS 

B.  ART  COMMISSIONS 

C.  STATE  PLANNING 

INTRODUCTORY   NOTE 

In  the  following  tables  will  be  found  references  to  the  principal 
statutes  in  the  various  political  subdivisions  of  this  country,  with  relation 
to  a  few  of  the  main  divisions  of  city  planning  law.  Except  as  otherwise 
noted,  the  references  are  to  the  session  laws  in  these  jurisdictions  and  the 
statutes  apply  to  a  number  of  local  governmental  units  and  not  exclusively 
to  one  such  unit. 

When  the  text  of  the  statute  is  given  in  this  work,  the  reference  to 
the  page  where  it  will  be  found  is  given  in  bold-face  type.  In  a  few  cases 
in  which  amendatory  statutes  have  appeared  after  the  text  of  the  book 
was  in  print,  the  substance  of  the  amendment  has  been  stated  here  in  italics. 

I.    PLANNING  THE  CITY  AS   A  WHOLE 

A.      APPROVAL  OF   PLATS    A    PREREQUISITE  TO   RECORD 

Note:  Except  as  otherwise  specified,  the  statute  applies  only  to  land 
witliin  the  city.  Where  it  applies  to  land  outside,  and  within  a  certain 
distance  of  the  exterior  limit  of  the  city,  that  distance  is  given.  In  a  few 
cases  the  statute  makes  it  unlawful  to  sell  the  land  unless  its  requirements 
are  fulfilled.  These  statutes  are  starred. 

ARIZONA.     1921,  ch.  27. 

CALIFORNIA.    1915,  ch.  756,  p.  1512;  now  General  Laws,  Act  2065,  sec.  4. 

631 


632  TABLES  OF  STATUTES 

CONNECTICUT.    Hartford.    15  Special  Laws,  p.  66 1  (1909,  no.  74). 
GEORGIA.    Fulton  County  and  City  of  Atlanta.    *  1921,  p.  216  (approved 

August  10),  and  an  identical  act,  *  1921,  p.  219  (approved  August  15), 

(6  miles  outside  Atlanta). 
ILLINOIS.     1921,  p.  260;  being  Smith's  Revised  Statutes,  1921,  ch.  24,  sec. 

72  (i%  miles)  ;  Counties,  1921,  p.  385;  being  ditto,  ch.  34,  sec.  25. 
INDIANA.     1921,  p.  561   (5  miles)  ;  being  Burns,  1921,  Suppt.,  sec.  8657!. 
KANSAS.     1921,  chs.  99,  139. 
LOUISIANA.     Constitution  and  Statutes,   1920,  II,  1269,  being  Act  160  of 

1918,  p.  271  (sec.  125),  (3  miles). 

MASSACHUSETTS.    General  Laws,  1921,  ch.  41,  sees.  73-8i. 
MINNESOTA.     1919,  ch.  292,  p.  300. 
MISSOURI.    *  1921,  p.  509  (approved  March  30). 
NEBRASKA.     1917,  ch.  87  (3  miles). 
NEW  JERSEY.    P.  L,  1912,  p.  436,  amended  1913,  p.  119,  now  Comp.  Stat. 

1st  Suppt.  (1911-15),  p.  413.  sees.  25-27. 
NEW  YORK.     1913,  ch.  699,  adding  art.  I2-A  to  the  General  Municipal  Law 

(p.  584)  ;  New  York  City,  1916,  ch.  513,  amending  charter,  sec.  1540; 

Rochester,    1921,    ch.    524;    Syracuse,    1913,    ch.    370    (3    miles). 
OHIO.    General  Code,  1910,  sec.  4346  (3  miles). 
OREGON.    1919,  ch.  311. 
PENNSYLVANIA.     1911,   June   10;    P.   L.  872;   being  Pa.   St.   1920    (Penn. 

Statutes   complete   to   1920,   West   Publishing   Co.),   sees.   3723-3727; 

amended  1921,  May  17;  P.  L.  841.    1913,  July  16;  P.  L.  752,  sec.  3,  being 

Pa.  Sta.  1920,  sec.  4381   (3  miles). 
VIRGINIA.     1918,  ch.  419  (15  miles). 
WISCONSIN.     1009,  ch.  162,  amended  1917,  ch.  404;  now  Statutes,  1921,  sec. 

62,  23  subd.   (2)    (1%  miles). 

B.     CITY  PLAN 

Laws  for  the  appointment  of  Planning  Commissions  (for  which  see 
Table  V — A)  usually  authorize  the  preparation  and  in  some  cases  the 
adoption  of  a  plan,  as  do  also  the  following  statutes. 

CONNECTICUT.    Revised  Statutes,  1918,  sees.  388,  390;  1921,  ch.  30. 

MARYLAND.  Baltimore.  See  "Code  of  Public  Local  Laws  of  Maryland," 
sees.  84-86,  art.  4,  title,  "City  of  Baltimore,"  sub-title,  "Charter." 

MICHIGAN.     1921,  no.  348,  amended  1921,  2d  Extra  Session,  no.  5. 

NEW  YORK.  New  York  City,  Charter  (4th  ed.  1918,  Ash),  ch.  X,  title  4 
(sees.  438-449)  ;  Buffalo,  Charter,  sec.  365,  added  by  Laws,  1922, 
ch.  411. 

PENNSYLVANIA.  1891,  May  16;  P.  L.  75;  sec.  12  amended  1913,  July  22; 
P.  L.  902  to  be  found  in  Pa.  St.  1920,  sec.  19476;  sec.  9  amended  1921, 
May  17;  P.  L.  844  (p.  587);  repealed  with  relation  to  boroughs  by 
sec.  i  of  art.  i  of  ch.  XIII  of  Act  of  1915,  May  14;  P.  L.  312.  Town- 
ships, first-class,  see  Pa.  St.  1920,  sec.  7072.  Boroughs,  ib.  sec.  1861- 
1866.  State  lii<ili-ca\s,  1921,  Apr.  6;  P.  L.  107  (p.  588).  riuladrlphiti, 
see  Pa.  St.  1920,  sees.  19417-19418.  See  also  a  modification  of  the  law 
with  relation  to  parks  and  parkways  in  the  cities  of  the  first  class 
(Philadelphia),  1915,  June  7;  P.  L.  894,  being  Pa.  St.  1920,  sees.  3187- 
3189,  which  however  is  generally  regarded  as  contrary  to  certain  spe- 
cial provisions  of  the  Constitution  of  Pennsylvania.  See  Opinions  of 
City  Solicitor  of  Philadelphia,  p.  08,  in  Philadelphia  Ordinances  and 
City  Solicitors  Opinions,  1920.  Set  also  Shuster  v.  Philadelphia,  239 
Pa.  St.  468  (1913). 


TABLES  OF  STATUTES  633 

II.    PLANNING  THE  PUBLIC  FEATURES 

A.     EXCESS   CONDEMNATION 

CONNECTICUT.    Hartford,   15    Private  Acts,  p.  43    (1907,  no.  61) ;    New 

Haven,  16  Private  Acts,  p.  897  (1913,  no.  243). 
HAWAII.     Counties.     1919,  ch.  170. 
MARYLAND.    Baltimore,  1904,  ch.  87;  1908,  ch.  166.    Interpreted  in  Bond 

v.  Mayor,  etc.,  of  Baltimore,  116  Md.  683  (1911). 
MASSACHUSETTS.     Constitution,  art.  X,  pt.  i    (1911)    (p.   148);   1904,  ch. 

443,  interpreted  in  Opinion  of  Justices,  204  Mass.  607,  616    (1910). 

Salem,  1912,  ch.  635;  Special  Acts  under  the  Constitutional  Amend- 
ment, 1912,  ch.  186  (p.  153)  ;  1913,  chs.  201,  326,  703,  778,  and  others. 
MICHIGAN.    Joint  resolution  for  amendment  of  Constitution,  1921,  no.  I, 

to  be  submitted  to  the  people  for  ratification,  November,  1922. 
NEBRASKA.     1915,  ch.  213. 

NEW  JERSEY.    Newark,  P.  L.  1870,  p.  311,  ch.  117  (p.   149). 
NEW  YORK.     Constitution,  art.  I,  sec.  7  (1913)   (p.  149)  ;  New  York  City, 

1812,  ch.  174,  held  unconstitutional  in  Matter  of  Albany  St.,  n  Wendell 

(N.  Y.)    149   (1834);  1911,  ch.  776,  amended  1913,  ch.  521;  1915,  ch. 

593,  inadvertently  repealed ;  reenacted  in  identical  language,  1916,  ch. 

112,  being  charter  sees.  9700  and  9706   (p.   153)  ;  Syracuse,  1914,  ch. 

300,  amended  1918,  ch.  448;  Rochester,  1920,  ch.  431,  amended   1921, 

ch.  524. 
OHIO.    Constitution,  art.  XVIII,  sec.  10  (1912)    (p.  148);  General  Code, 

1910,  sec.  3677,  par.  12  (1904)    (p.   ISO- 
OREGON.     1913,  ch.  269  (now  Laws  1920,  sees.  3837-3844)   (p.  151 ),  does 

not  apply  to  Portland,  Branch  v.  Albee,  71  Oreg.  188  (1914). 
PENNSYLVANIA.     1907,  June  8 ;  P.  L.  466  held  unconstitutional  in   Penn. 

Mut.  Life  Ins.  Co.  v.  Philadelphia,  242  Pa.  St.  Reports  47   (1913). 
RHODE  ISLAND.     Constitution,  art.  XVII    (1916)    (p.    149);  Providence, 

1917,  ch.  1560  (p.    159);  Pawtucket,  1919,  ch.  1825. 
SOUTH  CAROLINA.    7  Statutes,  136  (1817)  interpreted  Dunn  v.  City  Council 

of  Charleston,  16  So.  Car.  Law  Reports  (sometimes  cited  as  Harper's 

Law  Reports)  189  (1824). 

VIRGINIA.    Code,  1919,  sec.  3065  (1906,  1916)    (p.   152). 
WISCONSIN.     Constitution,  art.  XI,  sec.  3-A    (1912)    (p.    148);   Statutes, 

1921,   sec.  27.11    (formerly   1911,   ch.  486)  ;  ib.   sec.  62.23   subd.    (3) 

(formerly  1909,  ch.  162,  165;  1919,  ch  400). 

B.    SET  BACKS 

The  statutes  given  below  provide  for  set  backs  under  the  power  of 
eminent  domain.  The  subject  of  set  backs  under  the  police  power  is 
discussed  on  p.  279  of  this  work. 

CALIFORNIA.     1917,  ch.  735,  p.  1421 ;  now  General  Laws,  Act  4310. 

CONNECTICUT.  General  Statutes,  1918,  sees.  392-395,  SiS-S1^  Many  spe- 
cial acts  will  be  found  in  the  Private  and  Special  Laws,  Vol.  I,  and 
these  laws  for  1911,  1913,  1915  and  1917;  also  in  the  Charter  of 
Hartford,  sec.  7,  amended  12  Special  Laws,  p.  948  (1897,  no.  209). 
Of  special  interest  is  16  Special  Laws,  p.  1161  (1913,  no.  417),  giving 
New  Haven  power  to  limit  heights,  with  compensation,  near  parks. 
Similar  laws  will  be  found  in  other  States. 

DISTRICT  OF  COLUMBIA.  U.  S.  Stats,  at  Large,  Vol.  31,  p.  248,  ch.  299 
May  31,  1900;  Vol.  34,  p.  384,  ch.  3505  (June  21,  1906). 


634  TABLES  OF  STATUTES 

GEORGIA.    1921,  p.  216  (Aug.  10),  and  an  identical  act,  1921,  p.  219  (Aug. 

15). 

INDIANA.  1909,  p.  210,  sec.  7;  19",  P-  566,  being  Burns,  1914,  sec.  8753 
(p.  184)  ;  1917,  p.  474,  sec.  9,  being  Burns,  1921  Suppt.,  sec.  8746  h. 

1920,  July  Spec.,  p.  105. 

IOWA.     1919,  ch.  145,  being  Code  1919,  sec.  3615-3616;  see  also  1921,  ch.  200. 

MASSACHUSETTS.  General  Laws,  1921,  ch.  82,  sec.  37  (p.  184);  ch.  45, 
sec.  ii  (height  near  parks);  see  ch.  41,  sec.  80. 

MINNESOTA,  1903,  ch.  194,  p.  290;  amended  1919,  ch.  504,  p.  672;  see  Re- 
vised Laws,  Supplement,  1909,  sec.  [765-]  149,  subd.  8. 

MISSOURI.  St.  Louis,  Charter,  art.  VI,  sec.  i;  1921,  p.  510  (Mch.  30). 
First-class  cities.  Revised  Statutes,  1919,  sec.  7846. 

NEW  JERSEY.  P.  L.  1917,  p.  765,  ch.  215 ;  amended,  P.  L.  1920,  p.  276,  ch. 
137;  P.  L.  1922,  p.  417,  ch.  238. 

NEW  YORK.  New  York  City,  Charter,  sees.  439,  442,  970,  976;  amended 
1917,  ch.  631.  632  (p.  185).  tillages,  1921,  ch.  464,  adding  subd.  30  to 
sec.  89  of  the  Village  Law.  Towns,  Westchester  County,  1922,  ch. 
322,  adding  subd.  18  to  sec.  1420  of  the  Town  Law. 

NORTH  DAKOTA.  1907,  ch.  179;  amended  1909,  ch.  176;  1911,  ch.  75,  being 
Compiled  Laws,  1913,  sees.  4055-4063. 

OREGON.    1919,  ch.  275. 

PENNSYLVANIA.  See  references  under  City  Plan  (Table  I — B)  ;  also  or- 
dinances of  City  of  Philadelphia  of  March  31,  1884,  June  23,  1888, 
June  30,  1892,  and  June  30,  1921 ;  as  well  as  the  arcading  ordinance  of 
June  9,  1900. 

SOUTH  CAROLINA.    Spartanburg.     See  1921,  no.  417. 

TEXAS.    Cities  over  5,000,  1921,  ch.  87. 

VIRGINIA.    Code  1919,  sec.  3032. 

WISCONSIN.  Cities,  1907,  ch.  619,  being  Statutes,  1921,  sec.  62.23,  sub.  (n). 
First,  Second  and  Third  Class  Cittes,  1917,  ch.  471,  560,  being  Statutes, 

1921,  sec.  62.23,  subd.  (10). 


III.    PLANNING  THE   PRIVATE   FEATURES 

A.     ZONING 

The  Statutes  in  this  list,  except  as  otherwise  noted,  provide  for  zoning 
under  the  police  power.  The  statutes  which  confer  more  or  less  zoning 
power  upon  city  planning  commissions  are  marked  with  a  dagger  (t). 

CALIFORNIA,    f  I9'7,  Ch.  734,  p.  1419;  now  General  Laws,  Act  431. 
CONNECTICUT.    New  Haven,  18  Special  Acts,  p.   1045    (1921,  no.  428). 
DISTRICT  OF  COLUMBIA.    U.  S.  Stats,  at  Large,  Vol.  36,  pt.  I,  p.  452,  ch.  263 

(1910)  ;  ib.,  Vol.  41,  pt.  I.  p.  500,  ch.  92  (March  I,  1920)    (p.  3OI  ). 
GEORGIA,    t  Atlanta,  1921,  p.  665. 
ILLINOIS.    1921,  p.  180,  being  Smith's  Revised  Statutes,  1921,  ch.  24,  sees. 

66-70. 

INDIANA,    f  1921,  p.  660;  being  Burns  1921  Suppt.,  sees.  86550-8655^. 
IOWA.     I-irst   Class  and  Commission   Cities.     1917,  ch.    138;  being   Code, 

1919,  sees.  3617-3619;  amended  1921,  ch.  200. 
KANSAS.    First^  Class  Cities  over  200,000.    1 1921,  ch.  100. 
LOUISIANA.    Cities,  50,000  and  mer.    Constitution  and  Statutes,  1920,  p. 

'355.  being  Act  27  of  1918. 
MASSACHUSETTS.    Constitution,  art.  LX  (p.  293)  ;  General  Laws,  1921,  ch. 

40,  sees.  25-30,  amended,  see  amendments  adopted  Dec.  7,  1920,  p.  7; 

ib.,  ch.  143,  sec.  3;  also  1922,  ch.  40  (amending  provisions  with  regard 


TABLES  OF  STATUTES  635 

to  repeal  or  modification  of  zoning  ordinance  when  person  affected 
objects,  so  that  City  Councils  of  ten  or  more  members  may  pass  same 
by  three-fourths  vote).  Heights,  Boston,  1898,  ch.  452;  1904,  ch.  333; 
1905,  ch.  383;  1907,  ch.  416;  1912,  ch.  582;  1914,  ch.  786;  1915,  ch.  333; 
1919,  ch.  156.  Chelsea,  1908,  ch.  559. 

MICHIGAN,  f  1921,  no.  207,  and  1921,  no.  348,  amended  by  1921,  2d  Extra 
Session,  no.  5  (Home  Rule).  Detroit,  f  Charter,  ch.  X. 

MINNESOTA.  First  Class  Cities.  1915,  ch.  128,  p.  180;  amended  1919,  ch. 
297»  P-  3°5  (eminent  domain)1;  t  1921,  ch.  217,  p.  267.  Cities,  50,000 
or  over.  1913,  ch.  98,  p.  102,  being  Gen.  Stats.,  1913,  sec.  1581 ;  1913, 
ch.  420,  p.  618,  being  Gen.  Stats.  1913,  sec.  1582-1585. 

MISSOURI.    Cities,  ^oo, 000-600, 006.    f  1921,  p.  177,  and 
Cities  containing  50,000  or  less.     1921,  p.  481. 

NEBRASKA.    Metropolitan  Cities,    f  1919,  ch.  185. 

NEW  JERSEY.  Municipalities.  P.  L.  1920,  p.  455,  ch.  240;  P.  L.  1921,  p.  132, 
Ch.  82;  P.  L.  1922,  p.  277,  ch.  162;  P.  L.  1922,  p.  406,  ch.  234  (authoriz- 
ing zoning  by  stories).  See  P.  L.  1917,  p.  318,  ch.  152,  being  a  codi- 
fication of  most  of  the  municipal  law  of  the  state,  but  containing, 
when  passed,  no  zoning  provisions.  Cities.  P.  L.  1920,  p.  436,  ch.  229. 
First  Class  Cities,  f  P.  L.  1917,  p.  94,  ch.  54.  First  and  Second  Class 
Cities,  f  P-  L.  1918,  p.  338,  ch.  146 ;  t  P.  L.  1920,  p.  436,  ch.  229  (p. 
298).  t  1920,  p.  496,  ch.  274;  fP.  L.  1922,  p.  309,  ch.  181.  Third  and 
Fourth  Class  Cities,  t  P-  L.  1921,  p.  816,  ch.  276.  Boroughs,  t  P.  L. 
1922,  p.  691,  ch.  279. 

NEW  YORK.  1917,  ch.  483,  being  General  City  Law,  sec.  20,  subd.  24,  25, 
26;  1920,  ch.  743,  being  General  City  Law,  art.  5-A  (sees.  81-83)  (p. 
295)  ;  1921,  ch.  464,  being  Village  Law,  sec.  89,  subd.  30.  New  York 
City,  1914,  ch.  470;  amended  1916,  ch.  497,  and  1917,  ch.  601,  being 
Charter,  sees.  2420,  2426,  718  and  719  (p.  293).  Niagara  Falls,  1920, 
ch.  633;  Rochester,  1917,  chs.  483,  505;  1921,  ch.  524. 

OHIO,    t  1919,  108  v.  1175,  adding  to  Code  sees.  4366-7  to  4366-12. 

OREGON.    1 1919,  ch.  300,  now  Laws  1920,  sees.  3873-3878. 

PENNSYLVANIA.  Second  Class  Cities.  1 19*9,  June  21 ;  P.  L.  570,  being 
Pa.  St.,  sees.  3893-3896;  1921,  May  11;  P.  L.  503.  Philadelphia,  1915, 
May  ii ;  P.  L.  285 ;  1919,  June  25 ;  P.  L.  581,  sec.  9;  being  Pa.  St.  1920, 
sec.  2984. 

RHODE  ISLAND.    1921,  ch.  2069. 

SOUTH  CAROLINA.     See  1921,  ch.  417. 

TENNESSEE,  1921,  ch.  165. 

TEXAS.    Cities  over  5,000.    1921,  ch.  87. 

VIRGINIA,  1922. 

WISCONSIN.  Cities.  1 1917,  ch.  404,  being  Statutes,  1921,  sec.  62.23,  subd. 
5,  6.  Certain  tillages.  1917,  ch.  507,  being  Statutes,  1921,  sec.  61.35 
(eminent  domain).1 

*The  following  statutes,   now  repealed,  provided   for  zoning  by   eminent  domain: 
Nebraska,  1915,  ch.  213,  sees.  4-9;    Wisconsin,   1913,  ch.  456,  457- 


636  TABLES  OF  STATUTES 

IV.    PLANNING  FOR  THE  PROMOTION  OF  BEAUTY 

A,     OUTDOOR   ADVERTISING 

a.   Taxation  or  Regulation 

ALABAMA.    1919  (General),  p.  403  (Schedule  18). 

CONNECTICUT.     1919,  ch.  245;  General  Statutes,  1918,  sees.  3027-3030. 

FLORIDA.     Revised  General  Statutes,  1920,  sec.  815. 

HAWAII.     Revised  Laws,  1915,  sees.  2057-2062. 

ILLINOIS.     Smith's  Revised  Statutes,  1921,  ch.  24,  sec.  668. 

IOWA.    Code  Supplement,  1913,  sec.  7006. 

KANSAS.    1921,    ch.  135. 

MASSACHUSETTS.     Constitution,  article  L;  General  Laws,  1921,  ch.  93,  sec. 

20-33  (Rules  and  regulations  thereunder,  July   i,   1921). 
MISSOURI.    Revised  Statutes,  1919,  Vol.  2,  sec.  7976,  par.  33,  43. 
NEBRASKA.    Revised  Statutes,  1913,  sees.  4112,  4421,  4613,  4826  and  5034. 
NEW  JERSEY.    Compiled  Statutes,  1916,  Vol.  i,  pp.  654,  656.  659. 
NEW  YORK.     Consolidated  Laws,  1909.    Village  Law,  sec.  90,  subd.  26. 
NORTH  DAKOTA.    Compiled  Laws,  1913,  sees.  3599,  subd  17;  3818,  subd. 

ii ;  3861,  subd.  ii. 

OHIO.    General  Code,  1910,  sees.  3616,  3637. 
PORTO  Rico.    Compiled  Statutes,  1911,  sees.  1-9. 
RHODE  ISLAND.     1910,  ch.  542. 

TEXAS.    Complete  Statutes,  1920,  sec.  iog6d  (p.  211). 
VERMONT.    1921,  no.  44. 

WISCONSIN.    Statutes,  1921,  sec.  59.07,  subd.  16. 
PHILIPPINE  ISLANDS.    Administrative  Code,  1917,  sees.  1438,  1475-1477. 

b.  Prevention  of  Disfigurements 

CALIFORNIA.    1911,  p.  957;  1915,  p.  642. 

COLORADO.    Mills'  Annotated  Statutes,  1912,  sees.  2054-2058. 

CONNECTICUT.    General  Statutes,  1918,  sees.  6219,  6298. 

DELAWARE.     Revised  Statutes,  1915,  sec.  3487. 

ILLINOIS.    Smith's  Revised  Statutes,  1921,  ch.  38,  sec.  466,  par.  9. 

MAINE.    Revised  Statutes,  1916,  ch.  129,  sec.  18. 

MARYLAND.     Code  Public  General  Laws,  article  39- A,  sec.  15-!. 

MASSACHUSETTS.    General  Laws,  1921,  ch.  266,  sec.  126. 

MONTANA.    Revised  Codes,  1921,  sec.  11481. 

NEW  JERSEY.    P.  L.  1917,  p.  290,  ch.  131. 

NEW  YORK.     Penal  Law,  sec.  1423,  subd.  ii. 

PENNSYLVANIA.    Pa.  Statutes,  1920,  sec.  7967-7969. 

RHODE  ISLAND.    General  Laws,  1909,  ch.  241,  sec.  5;  ch.  345,  sec.  41. 

VERMONT.    General  Laws,  1917,  sees.  328,  6941,  6948,  6949,  6951,  6971. 

V.    PLANNING  ADMINISTRATION 

A.      PLAN   COMMISSIONS 

Under  some  statutes,  Plan  Commissions  are  also  Art  Commissions. 
These  statutes  in  this  table  are  starred.  The  commissions  are  City  Com- 
missions, unless  otherwise  noted. 

There  are  numerous  special  laws,  charter  enactments,  and  home  rule 
constitutional  and  statutory  provisions,  under  which  the  adoption  of  i>hms 


TABLES  OF  STATUTES  637 

and  the  appointment  of  planning  commissions  are  authorized,  and  in  many 
cases  have  occurred,  which  are  not  mentioned  in  this  table.  Commissions 
merely  with  advisory  powers  usually  may  be  and  often  have  been  ap- 
pointed without  express  statutory  authority. 

In  some  statutes  the  Commission  is  given  more  or  less  express 
authority  with  regard  to  zoning.  These  statutes  are  marked  with  a 
dagger  (t).  In  some  zoning  statutes  such  authority  is  given  city  plan- 
ning commissions.  These  statutes  will  be  found  in  the  table  of  Zoning 
Statutes  (Table  III — A),  marked  with  a  dagger. 

CALIFORNIA,  t  1915,  ch.  428,  p.  708,  now  General  Laws,  Act  2389;'.  The 
statute  applies  only  to  fifth  and  sixth  class  cities.  Many  of  the  cities 
of  classes  I  to  IV  have  charter  provisions  authorizing  the  appointment 
of  City  Planning  Commissions ;  and  they  all  have  the  power  to  adopt 
home  rule  charters  which  shall  include  such  a  power.  See  also  1915, 
p.  1514  (Capital  City  Planning  Commission),  now  General  Laws,  Act 
3805  (p.  603). 

CONNECTICUT.  Many  cities  and  towns  have  provisions  in  their  charters  or 
are  empowered  by  special  statutes  to  appoint  commissions ;  as,  for  in- 
stance, Hartford,  15  Special  Laws,  p.  43  (1907,  no.  61),  amended  15 
Special  Laws,  p.  634  (1909,  no.  34),  sec.  6,  and  p.  661  (no.  74),  where 
the  first  permanent  official  commission  in  this  country  was  created; 
also  New  Haven,  16  Special  Laws,  p.  897  (1913,  no.  243)  ;  New  Lon- 
don, 16  ib.,  p.  1035  (1913,  no.  351).  Especially  interesting  are  Windsor, 
17  Special  Laws,  p.  827  (1917,  no.  133),  and  Bloomfield,  17  Special 
Laws,  p.  831  (1917,  no.  134),  with  relation  to  which  see  p.  36,  ff., 
of  this  work.  Any  town,  city  or  borough  in  this  state  is  now  em- 
powered to  create  such  a  commission.  1921,  ch.  30.  See  also  Revised 
Statutes,  1918,  sees.  391-396. 

ILLINOIS,    t  1921,   p.   260,   being   Smith's    Revised   Statutes,   ch.  24,   sees. 

71-73- 

INDIANA.    *figBl,  p.  561,  being  Burns,  1921  Suppt.,  sees.  86s7e-8657/». 

KANSAS.    First  Class  Cities  over  200,000.     1921,  ch.  99. 

KENTUCKY.     1922. 

MASSACHUSETTS.  General  Laws,  1921,  ch.  41,  sees.  70-72,  73-81 ;  ch.  45, 
sec.  2. 

MICHIGAN.  1921,  no.  348,  amended  1921,  2d  extra  session,  no.  s.f  Detroit 
*t  Charter,  ch.  X  (1919). 

MINNESOTA.  *  t  Certain  First  Class  Cities.  1919,  ch.  292,  p.  300  (p.  576). 
Under  art.  IV,  sec.  36  of  the  Constitution,  cities  and  villages  are  also 
given  the  right  to  frame  and  amend  their  own  charters,  and  therefore 
to  adopt  plans  and  appoint  planning  commissions. 

NEBRASKA,     t  1915,  ch.  213;  amended  1919,  ch.  185. 

NEW  JERSEY.  First  Class  Cities.  P.  L.  1911,  p.  103,  ch.  71.  *  P.  L.  1913, 
p.  112,  ch.  72.  Second  Class  Cities.  *  P.  L.  1913,  p.  281,  ch.  170. 
Third  and  Fourth  Class  Cities,  Boroughs,  etc.  *  P.  L.  1915,  p.  350, 
ch.  188,  amended  P.  L.  1916,  p.  377,  ch.  175;  P.  L.  1920,  p.  414,  ch.  216 
(p.  578);  P.  L.  1921,  p.  695,  ch.  218.  Counties.  P.  L.  1918,  p.  567, 
ch.  185,  art.  XVI  (p.  603).  Port  Authorities.  P.  L.  1921,  pp.  412  (p. 
597),  423,  chs.  151,  152;  P.  L.  1922,  p.  25,  ch.  9  (approved  Feb.  25). 
The  plan  was  approved  by  the  U.  S.  Congress,  Aug.  23,  1921.  See 
also  P.  L.  1922,  p.  191,  ch.  104. 

NEW  YORK.  1913,  ch.  699,  being  art.  I2-A  of  the  General  Municipal  Law, 
amended  1920,  ch.  377;  1921,  ch.  464  (p.  581).  Syracuse,  1920,  ch. 
447;  amended  by  1922,  ch.  544.  Rochester,  1917,  ch.  505.  Westchester 
County,  1915,  ch.  109;  Towns  in  Westchester  County,  1922,  ch.  322, 
adding  subd.  18  to  sec.  1420,  Town  Law.  Port  Authority,  1921,  ch. 


638  TABLES  OF  STATUTES 

154  (p.  597),  203;  1922,  ch.  43.  The  plan  was  approved  by  the  U.  S. 
Congress,  Aug.  23,  1921. 

OHIO.  *  Laws,  106  v.  455  (1915),  being  Code  *  sees.  4366,  1-6;  amended 
t  1919,  108  v.  1175,  adding  to  Code,  sees.  4366-7  to  4366-12.  Cleve- 
land, *  Charter,  sec.  77.  Municipalities  are  also,  by  home  rule  pro- 
visions, authorized  to  frame  their  own  charters,  and  thus  obtain  power 
to  adopt  maps,  appoint  planning  commissions,  etc. 

OREGON.    Portland,  *  1919,  ch.  311,  now  *  Laws   1920,  sees.  3862-3872. 

PENNSYLVANIA.  First  Class  Cities.  1919,  June  25;  P.  L.  581,  sec.  10,  being 
Pa.  St.  1920,  sec.  2985.  Second  Class  Cities,  1911,  June  10;  P.  L.  872, 
being  Pa.  St.  1920,  sees.  3723-3727,  amended  1921,  May  17;  P.  L.  841. 
Third  Class  Cities,  1913,  July  16;  P.  L.  752,  being  Pa.  St.  1920,  sees. 
4379-4384  (p.  589).  Metropolitan  District,  1913,  May  23;  P.  L.  339 
(p.  594)  (repealed  in  1915,  abolishing  the  Commission). 

SOUTH  CAROLINA.    Spartansburg.    f  1921,  no.  417. 

VERMONT.    1921,  no.  107. 

WISCONSIN.  *  1909,  ch.  162,  amended  1917,  ch.  404,  now  Statutes,  1921, 
sec.  62.23,  subd.  (i)-(3). 

B.     ART  COMMISSIONS 

Except  as  otherwise  noted,  the  commissions  created  by  the  laws  given 
below  are  municipal  commissions.  To  this  list  should  be  added  the  laws 
creating  commissions  with  both  planning  and  art  regulation  powers,  for 
which  see  Table  V— A  ante.1 

ALABAMA.    State  and  Local.    General  Acts,  1919,  p.  880  (no.  636). 

ARKANSAS.    State,  Digest,  1921,  ch.  21  (sec.  839). 

CONNECTICUT.    State,   General    Statutes,    1918,   ch.    114,    sees.    2186-2192. 

New  Haven,  14  Special  Laws,  p.  728  (1905,  no.  294). 
DISTRICT  OF  COLUMBIA.    See  United  States. 
ILLINOIS.    -State,  1909,  p.  96;  now  Smith's  Revised  Statutes,  1921,  ch.  127, 

sec.  6,  50.    Municipal,  1899,  p.  89;  amended  1915,  p.  260;  now  Smith's 

Revised  Statutes,  1921,  ch.  24,  sec.  622-629.    Chicago,  Code  (Callaghan 

and  Co.,   1911),  sees.   121-122. 
MASSACHUSETTS.    State,  General   Laws,   1921,  ch.  6,  sees.   19-20.    Cities 

and  towns,  ib.,  ch.  41,  sees.  82-84.    Boston,  1898,  ch.  410. 
MINNESOTA.    General  Statutes,  1913,  sec.  1611. 
NEW  YORK.    Cities  of  First  and  Second  Class,  1900,  ch.  327,  sees.  120,  122, 

being  General  City  Law,  former  Art.  8,  renumbered  (1911,  ch.  718) 

art.   XI  A    (sees.    165-167).    New  York  City,    Charter,  sees.  633-639 

(p.  584).    Mount  Vernon,  1909,  ch.  552. 
OHIO.    General  Code,  1910,  sees.  4343-4345- 
PENNSYLVANIA.    State  and  Local,  1919,  May  i;  P.  L.  103,  being  Pa.  St. 

1920,   West    Publ.   Co.,    sees.    17571-17578.    First   Class   Cities,    1919. 

June  25;  P.  L.  581,  art.  II,  sec.  n,  being  Pa.  St  1920.  sees.  2986-2991. 

Second  Class  Cities,  ign,  May  12;  P.  L.  291,  being  Pa.  St.  1920,  sees. 

3720-3722. 
UNITED  STATES.    D.  C.  and  National.     Act  of  May  17,  1900,  36  Stat.  L. 

371,  ch.  243. 

VIRGINIA.    State,  Code,  1919,  ch.  31  (sec.  581-585). 
WISCONSIN.    Cities  of  First  Class  (Milwaukee),  1911,  ch.  318,  amended 

by  1915,  ch.  217. 

1  The  text  of  a  number  of  art  commission  laws  and  statutes  will  be  found  in 
L*wt  Relating  to  Art  Commistioiu,  printed  for  the  Art  Commission  of  the  City  of 
New  York,  May,  1914. 


TABLES  OF  STATUTES  639 

C.      STATE   PLANNING 

A  state  planning  department  has  been  established  in  Pennsylvania, 
under  1919,  Apr.  4;  P.  L.  45  (p.  6O4).  The  Immigration  and  Housing 
Commission  of  California  (1917,  ch.  740,  p.  1514,  now  General  Laws,  Act 
1589,  sec.  15-17)  and  the  Department  of  Public  Welfare  of  Massachusetts 
(General  Laws,  1921,  ch.  121,  sees.  23,  26,  27,  formerly  the  Homestead 
Commission)  collect  and  disseminate  planning  information.  In  Massa- 
chusetts there  is  also  a  Federation  of  Planning  Boards.  For  an  account 
of  the  planning  activities  of  the  National  Government,  see  p.  542,  note. 


INDEX  OF  CASES 


Albany     Heights     Realty     Co.     v. 

Vogt,    182    App.    Div.    736;    169 

N.  Y.  Supp.  1049  (1918),  286 
Albany  St.,  Matter  of,  11   Wendell 

(N.  Y.)  149  (1834),  70,  133 
Allison    v.    Welde,    172    N.    Y.    421 

(1902),  565 
Altschul  v.  Ludwig,  216  N.  Y.  459 

(1916),   574 
American  Assoc.  v.  Commonwealth, 

193  Mass.  470  (1907),  37i 
Anderson    v.    Steinway,    178    App. 

Div.  507;  221   N.  Y.  639  (1917), 

286 
Appeal  of  Rees,  8  Sadler   (Penn.) 

582  (1888),  391 
Application  of  Senate,  10  Minn.  78 

(1865),  135 
Attorney  General  v.  Williams,   174 

Mass.  476  (1899),  137,  385 
Attorney  General  v.   Williams,   178 

Mass.  330  (1901),  385 

B 

Bacon  v.  Walker,  204  U.  S.  311 
(1907),  285 

Baltimore,  Mayor,  etc.  of,  v.  Clunet, 
etc.  23  Md.  449  (1865),  68 

Barbier  v.  Connolly,  113  U.  S.  27 
(1884),  285,  286 

Bauman  v.  Ross,  167  U.  S.  548 
(1897),  32 

Bell  v.  Town  of  Westfield  (N.  J.) 
pending  in  Supr.  Ct.,  566 

Bellows  v.  City  Council  of  Cincin- 
nati, ii  Ohio  St.  Rep.  544  (1860), 

564 

Bennett  v.  Boyle,  40  Barbour  (N. 
Y.)  SSI  (1863),  133 

Birdsall  v.  Clark,  73  N.  Y.  73,  573 

Blakeslee  v.  Mayor  and  Aldermen 
of  Jersey  City,  95  N.  J.  Law  Rep. 
284;  112  Atl.  593  (1921),  285,  286 

Bond  v.  Mayor  and  City  of  Balti- 
more, 116  Md.  683  (1911),  135 


Bonnett   v.    Vallier,    136   Wis.    103 

(1908),  287 
Bostock    v.     Sams,     95     Md.     400 

(1902),  287 
Boston,  etc.,  Corp.  v.  Newman,  12 

Pickering     (Mass.)     467     (1832), 

382 
Boulat  v.  Municipality  No.  i,  5  La. 

Ann.  Rep.  363   (1850),  68 
Bowman  v.  R.  Co.,  125  U.  S.  465 

(1888),  539 
Boyd  v.  City  of  Sierra  Madre,  41 

Cal.    App.     520;     183     Pac.    230 

(1919),  285 
Brenner,  Matter  of,  170  N.  Y.  186 

(1902),  565 
Brooklyn   v.    Copeland,    106   N.    Y. 

496  (1887),  57 
Brooklyn    Park    Commissioners    v. 

Armstrong,  45  N.  Y.  234  (1871), 

57 
Brown  v.  City  of  Los  Angeles,  183 

Cal.   783;    192    Pac.   716    (1920), 

284,  285,  287 
Brown   v.    Maryland,    12   Wheaton 

(U.  S.)  419  (1827),  18,  22 
Browne  v.   Boston,   179   Mass.  321 

(1901),  362 
Buchanan  v.  Warley,  165  Ky.  559; 

reversed  245  U.  S.  60  (1917),  287 
Bulger,   In  re,  45   Cal.  533    (1873), 

564 

Bunyan  v.  Commissioners  of  Pali- 
sades Interstate  Park,  153  N.  Y. 

Supp.  622   (1915),  389 
Burnham    v.    Milwaukee,    98   Wis. 

(1897),  362 
Butler  v.  White,  83  Fed.  Rep.  578 

(1897),  565 

Byrne  v.  Md.  Realty  Co.,  129  Md. 
202;  98  Atl.  547  (1916),  284 


Calvo  v.  City  of  New  Orleans,  136 
La.  480;  67  So.  338  (1915).  285 

Camfield  v.  United  States,  167  U. 
S.  518  (1897),  19 


641 


642 


INDEX  OF  CASES 


Carey  v.  City  of  Atlanta,   143  Ga. 

192  (1915),  287 
Cascade  Town  Co.  v.  Empire  Water 

&  Power  Co.,  181  Fed  Rep.  ion 

(1910),  391 
Central    Irrigation    District    v.    De 

Lappe,  79  Cal.  351  (1889),  523 
Chicago  v.  Gunning  System,  214  111. 

628  (1905)   266 
Chicago  v.  Stratton,  162  111.  494;  44 

N.  E.  853  (1896),  266,  285 
Chicago,  B.  &  Q.  Ry.  Co.  v.  Drain- 
age Com'rs  (111.),  200  U.  S.  561 

(1906),  287 
Chiras    v.    Olinger,    50    Iowa    571 

(1879),  286 
Chittenden  v.   Wurster,    153   N.  Y. 

664  (1897),  565 
Churchill  v.   Rafferty  Collector,   14 

Official  Gazette  (Philippines)  383 

(1916),  392,  393 
Cify  of  Chicago  v.  Stratton,  162  111. 

494;  44  N.  E.  853  (1896),  266 
City  of   Des  Moines  v.  Manhattan 

Oil  Co.   184  N.  W.  823   (1921), 

286,  287 
City  of  Hammond  v.  Calumet  C.  & 

S.   Co.  262  Fed.  938   (1920),  286 
City  of  New  York,  In  re  (Clinton 

Avenue),  68  N.  Y.  Supp.  196;  57 

App.  Div  166 ;  aff 'd  167  N.  Y.  624 

(1901),  388,  390 
City    of     New    York,    Matter    of 

(Briggs  Avenue),  118  App.  Div. 

(N.  Y.)  224  (1007),  31 
City  of  Olympia  v.  Mann,  I  Wash. 

389  (1890),  286 
City  of  Rochester  v.  West,  164  N. 

Y.  510  (1900),  286 
Citv   of    St.   Louis   v.   Evraiff   and 

Friedman,    Mo.    Sup.    Ct,    Oct. 

Term,  1921,  284,  292 
City  of   St.   Louis   v.   Russell,    116 

Mo.  r-3;  22  S.  W.  470  (1893), 

266,  286 
City   of    St.    Paul   v.    Kessler,    146 

Minn.  124;  178  N.  W.  171  (1920), 

286 
City  of  Spokane  v.  Camp,  50  Wash. 

554;  97  Pac.  770  (1908),  266,  286 
Clark    v.    Nash.     198    U.     S.    361 

(1905),  21,  136 
Oiffside      Park      Realty      Co.      v. 

Borough   of   Cliffside   Park,    (N. 

J.),  114  Atl.  707  (1921),  284.  286 
Ginton  Avenue,  Matter  of,  68  N. 

Y.  Supp.  196;  57  App.  Div.  166; 


affd  167  N.  Y.  624  (1901),  388, 
390 

Cochran  v.  Preston,  108  Md.  220 
(1908),  265,  284,  394 

Commonwealth  v.  Boston  Adv.  Co., 
188  Mass.  348  (1905),  3«8 

Cooley  v.  Port  Wardens,  12  How- 
ard (U.  S.)  209  (1851),  538 

Coon  v.  Bd.  of  Public  Works,  ? 
Cal.  App.  760  (1908),  266,  286 

Covington,  etc.,  Bridge  Co.  v.  Ken- 
tucky, 154  U.  S.  204  (1894),  539 

Coyne  v.  Prichard  (Penn.),  1 16 
Atl.  315  (1922),  286 

Cuba  v.  Mississippi  Oil  Co.,  150 
Ala.  259,  43  So.  706  (1907),  286 

Curran    v.    Louisville,    83    Ky.    628 

(1886),  57 
Curran  Co.  v.  Denver,  47  Col.  221 

(1910),  266 
Curtis  v.  City  of  Los  Angeles,  172 

Cal.   230;    156    Pac.   462    (1916), 

285 
Cusack  Co.  v.  City  of  Chicago  267 

111.   344    (1915)-    108  N.   E.   340; 

aff'd   242   U.   S.   526    (1917),   24, 

266,  285,  418 

D 

Dangel  v.  Williams,  II  Del.  Ch.  213 

(1916),  266,  285 
Dartmouth   College   v.    Woodward, 

4  Wheaton   (U.  S.)   518   (1819), 

163 
Debt  Limit,  In  re,  123  N.  Y.  Supp. 

860  (1910),  362 
De  Lima  v.  Bidwell,   182  U.  S.   i 

(1901),  536 
Denver    v.    Rogers,    46    Col.    479 

(1909),  266 

Des  Moines  v.  Manhattan  Oil  Co. 
.  184  N.  W.  823  (1921),  286,  287 
Diamond  Rings  (The),  183  U.  S. 

176  (1001),  536 
Dingley  v.   Boston,    100  Mass.   544 

(1868),  140,  141 
Dooley  v.  United  States,  182  U.  S. 

222  (1901),  5.36. 
Dorr   v.    United    States,    195   U.    S. 

138  (1904).  536 
Downes  v.   Bidwell,   182  U.  S.  244 

(1901),  536 
Drainage  District  No.  r  v.  Richard- 
son County,  86  Neb.  355   09io), 

145 

Dunn  v.  City  Council  of  Charleston, 
16  So.  Car.  Law  Rep. — sometimes 


INDEX  OF  CASES 


643 


cited     Harpers     Law     Rep. — 189 
(1824),  68,  133,  134 
Durgan  v.  Boston,  12  Alien  (Mass.) 
223  (1866),  134 


Embury   v.    Conner,   3   N.    Y.    511 

(1850),  133,  134 
Erie  R.  R.  v.  Williams,  233  U.  S. 

685  (1914),  22 
Eubank  v.   Richmond,   no  Va.  749 

(1910);    226   U.    S.    137    (1912), 

266 
Evans    v.     Holman,    244    111.    596 

(1910),  362 
Ex    parte — Cases    so    reported    are 

listed  under  the  principal  word  in 

the  title,  in  this  index. 


Fallbrook     Irrigation     District     v. 

Bradley,  164  U.  S.  112  (1896),  20, 

21,  22,  144,  145 
Farist   Steel    Co.   v.   Bridgeport,  60 

Conn.  278  (1891),  382 
Fletcher  v.  Peck,  6  Cranch  (U.  S.) 

87  (1810),  141 
Forbes     Street,     70     Pa.     St.     125 

(1871),  3i 
Foster  v.  Park  Commissioners,  133 

Mass.  321    (1882),  386,  390 
French   v.    Barber   Asphalt    Paving 

Co.,  181  U.  S.  324  (1901),  377 
Fruth     v.     Board     of     Affairs     of 

Charleston,  75  W.  Va.  456;  84  S. 

E.  105   (1915),  279,  286 
Furman  Street,  Matter  of,  17  Wend. 

(N.  Y.)  649  (1836),  31 


Guinness  v.  Forchheimer,  TV.  Y. 
Law  Journal,  May  21,  1921 ;  190 
N.  Y.  Supp.  929  (1921),  287 

Gundling  v.  Chicago,  176  111.  340 
(1898),  268 

H 

Hadacheck,  Ex  parte,  165  Cal.  416; 

132  Pac.  584  (1913),  208,  285,  287 
Hadacheck  v.   Sebastian,  239  U.  S. 

394  (1915),  208,  285,  287 
Hagar  v.  Reclamation  District,  in 

U.  S.  701  (1884),  144 
Hall    v.    House    of    St.    Giles    the 

Cripple,     154    N.    Y.     Supp.    96 

(1915),  286 


Hammond  v.  Calumet  C.  &.  S.  Co. 

262  Fed.  938  (1920),  286 
Handy  v.  Village  of  South  Orange, 

(N.   J.)— Atl.— (1922),   285,   287, 

292 
Hairston  v.  Danville  and  Western 

Railway     Co.,     208    U.     S.     598 

(1008),  21,  24 
Hawaii  v.  Mankichi,  190  U.  S.  197 

(1903),  536 
Hays  v.   City  of  Poplar  Bluff  263 

Mo.  516  (1914),  266,  286 
Head  v.  Amozkeag  Manufacturing 

Co.,  113  U.  S.  9  (1885),  145 
Hellyer    v.    Prendergast,    176    App. 

Div.  383  (1917),  565 
Higginson     v.     Nahant,     11    Allen 

(Mass.)  530  (1866),  387,  391 
Home  Ins.   Co.  v.   New  York,   134 

U.  S.  594  (1890),  376 
Hopkins  v.  City  of  Richmond,  117 

Va.  692  (1915),  287 
Houck    v.    Little    River    Drainage 

District,   239   U.    S.    254    (1915), 

147 
Hubbard  v.  Taunton,  140  Mass.  467 

(1886),  387 
Huus  v.  N.  Y.  etc.  S.  S.  Co.,  182 

U.  S.  392  (1901),  536 


Ingham  v.  Brooks  et  al.,  95  Conn. 
317  (1920),  279,  573 

In  re — Cases  so  reported  are  listed 
under  the  principal  word  in  the 
title,  in  this  index. 

Interstate,  etc.,  Railway  Co.  v.  Com- 
monwealth, 207  U.  S.  79  (1907), 
19 

K 

Kane    v.    Gaynor,    Matter    of,    144 

App.  Div.   196;   129  N.  Y.  Supp. 

280;  aff'd  202  N.  Y.  615   (1911), 

565 
Kelly   v.   Minnesota,   63   Minn.   125 

(1895),  362 
Kentucky  R.  R.  Tax  cases,  115  U. 

S.  321  (i88.O,  376 
King  v.  MacPherson,  20  Dominion 

Law  Reports  988  (1914),  47 
Kingman    v.    Brockton,    153    Mass. 

255  (1891),  386 
Knowlton  v.   Moore,    178  U.   S.  41 

(1900),  376,  378 


644 


INDEX  OF  CASES 


Lake  Shore,  M.  S.  &  S.  Ry.  Co.  v. 

Ohio,  173  U.  S.  285   (1898),  287 
Lewis    Publishing    Co.   v.    Morgan, 

229  U.  S.  288  (1913),  419 
Lexington   v.   Lafayette   Bank,   165 

Mo.  671   (1901),  362 
Lincoln    v.    St.   Com'rs,    176   Mass. 

210   (1900),  371 
Lincoln  Trust  Co.  v.  Williams  Bldg. 

Corp.,  183  App.  Div.  225;  229  N. 

Y.  313  (1920),  284,  288,  290,  570 
Lowell   v.    Boston,    m    Mass.   454 

(1873),  135 

M 

McCulloch  v.  Maryland,  4  Wheaton 

(U.  S.)  316  (1810),  376 
McMurtry    v-    Phillips    Investment 

Co.,   103   Ky.   308;  45   S.   W.   96 

(1898),  284 
Madera   Irrigation   District,   In   re, 

92  Cal.  296  (1891),  23 
Magoun  v.  Illinois,  etc.,  Bank,  170 

U.  S.  283   (1898),  376 
Matter   of — Cases   so   reported   are 

listed  under  the  principal  word  in 

the  title,  in  this  index. 
Mayor,     etc.,     of     Baltimore     v. 

Clunet,  etc.,  23  Md.  449  (1865), 

68 
Meagher  v.  Kessler,  147  Minn.  182 

(1920),  286 
Merrill,  In  re,  45  Cal.  533  (1873), 

564 
Meyers    v.    Houghton,    137    Minn. 

481;  163  N.  W.  754  (1917),  286 
Montgomery,   In  re,   163   Cal.  457; 

125  Pac.  1070  (1912),  285 
Moss  v.   Ruben   Stern   N.   Y.  Law 

Journal,  Dec.  29,  1921,  286 
Myers    v.    Fortunato,    (Del.)     no 

Atl.  847   (1920),  266,  285 

N 

Nahser  v.  City  of  Chicago,  271  111. 

288  (1916),  286 
Neal    v.    Vansickle,    72    Neb.    105 

(1004),  145 
New  York,  City  of,  In  re  (Clinton 

Avenue),  68  N.  Y.  Supp,  196;  57 

App.  Div.  166 ;  aff'd  167  N.  Y.  624 

(1901),  388,  390 
New    York,    Matter    of    City    of 

(Briggs  Avenue),  118  App.  Div. 

(N.  Y.)  224  (1907),  3i 


New  York  and  N.  E.  R.  R.  Co.  v. 

Bristol,  151  U.  S.  556  (1894),  164 
Nicol    v.    Ames,     173    U.    S.    509 

(1809),  376 
Noble   State   Bank  v.   Haskell,  219 

U.  S.  104  (1911),  19,  148 
Noell    v.    Tennessee,   etc.    Co.,    130 

Tenn.  245   (1914),  56 
N.  W.  Laundry  Co.  v.  Des  Moines, 

239  U.  S.  486  (1916),  286 

O 

Ogden    v.    Saunders,    12    Wheaton 

(U.  S.)  213  (1827),  22 
Olmstead   v.    Camp,   33   Conn.   532 

(1866),  387 
Olympia    v.    Mann,    i    Wash.    389 

(1890),  286 
O'Neill   v.   Learner,  239  U.   S.  244 

(1915),  145,  147 
Ontario  Knitting  Co.  v.  State,  205 

N".  Y.  409  (1912),  573 
Opinions  of  Justices,  204  Mass.  607, 

616   (1910),   129,   135,  138 
Opinion  of  justices,  234  Mass.  597: 

127  N.  E.  525  (1920),  284,  288 
Oppenheim  Apparel  Corp.  v.  Cruise, 

N.    Y.    Law   Journal,    March    2, 

1922,  p.  1914,  419 
Orr  v.  Gilman,  183  U.  S.  278  (1902), 

376 
Osborne    v.    Grauel,    136    Md.    88 

(1920),  286 


People  v. 
People    v.    Angle,    109    N.    Y.    564 

(1888),  565 
People  v.  King,  no  N.  Y.  418 

(1888),  18 
People  v.  Mayor,  4  N.  Y.  419 

(i8sO,377 
People  v.  Ronner,  185  N.  Y.  285 

(1906),  377 
People  v.  Rosenheimer,  209  N.  Y. 

"5  (1913),  419 
People  v.  Schweinlcr  Press,  214  N. 

Y.  395  (I9J5),  »9 
People  v.  Williams,  189  N.  Y.  131 

(1907),  19 

People  ex  rel. 
People  ex  rel  Bolton  v.  Albertson, 

5SN.  Y.  50  (1873),  565 
People  ex  rel.  Sheldon  v.  Board  of 

Appeals,  115  Misc.  449;  189  N.  Y. 


INDEX  OF  CASES 


645 


Supp.    772,    aff'd    200    App.    Div. 
907;  192  N.  Y.  Supp.  945  (1922), 

286,  287 

People  ex  rel.  Weintz  v.  Burch,  79 

App.  Div.  156  (1903),  565 
People  ex  rel.   Goldberg  v.   Busse, 

240  111.  338;  88  N.  E.  831  (1909), 

285,  286 
People   ex   rel.    Friend   v.   City  of 

Chicago,   261    111.    16;    103    N.   E. 

609  (1913),  266,  285 
People  ex  rel.  Devery  v.  Coler,  173 

N.  Y.  103  (1903),  565 
People  ex  rel.  Busching  v.  Ericsson, 

263  111.  368;  105  N.  E.  315  (1914), 

266,  285 
People  ex  rel.  Qua  v.  Gaffney,  142 

App.  Div.  122  (1911),  565 
People  ex  rel.  Cotton  v.  Leo,   no 

Misc.  519;  180  N.  Y.  Supp.  554; 

aff'd   194  App.   Div.  921    (1920), 

287,  574 

People  ex  rel.  Facey  v.  Leo,  no 
Misc.  516;  193  A.  D.  910;  180 
N.  Y.  Supp.  553;  230  N.  Y.  602 
(1921),  287,  575 

People  ex  rel.  Flegenheimer  v.  Leo, 
186  App.  Div.  893  (1918),  286, 

575 
People  ex  rel.   Healey  v.  Leo,   185 

N.  Y.  Supp.  948  (1920),  287 
People  ex  rel.  Helvetia  Realty  Co. 

v.  Leo,  183  N.  Y.  Supp.  37;   185 

N.  Y.  Supp.  949;   195  App.  Div. 

887  (1920),  287,  575 
People  ex  rel.   Hyman  v.  Leo,   108 

Misc.  39  (1919),  574 
People  ex  rel.  McAvoy  v.  Leo,  109 

Misc.  255;   178  N.  Y.   Supp.  513 

(1919),  287 
People   ex   rel.   New  York   Central 

R.  R.  v.  Leo,  105  Misc.  372;  173 

N.  Y.  Supp.  217  (1918),  286 
People  ex  rel.  Ruth  v.  Leo,  AT.  Y. 

Law  Journal,  March  29,   1921,  p. 

2195;  188  N.  Y.  Supp.  945  (1921), 

287,  575 
People  ex  rel.  Small  v.  Leo,  178  N. 

Y.  Supp.  239  (1919),  287 
People   ex    rel.    Wonl   v.   Leo,    109 

Misc.  448;   178  N.  Y.  Supp.  851 

(1919),  287 
People    ex    rel.    Beinert    v.    Miller, 

AT.  Y.  Law  Journal,  June  18,  1917, 

p.  1045;  100  Misc.  318,  188  App. 

Div.    113,    165    N.    Y.    Supp.   602 

(1919),  270,  287,  419,  573 


People  ex  rel.  Broadway  and  96th 

St.  Realty  Co.  v.   Miller,  N.   Y. 

Law  Journal,  Nov.  i,  1921,  286 
People  ex  rel.  Cockcroft  v.  Miller, 

187  App.  Div.  (N.  Y.)  704  (1919), 

575 
People  ex  rel.   Balcorn  v.   Mosher, 

163  N.  Y.  32  (1900),  565 
People  ex  rel  Wineburgh  Adt.  Co. 

v.  Murphy,  195  N.  Y.  126  (1909), 

287 
People  ex  rel.  Morris  v.  Osborn,  22 

Ohio  N.  P.   (N.  S.)   549  (1920), 

284 
People  ex  rel.  N.  Y.  C.  &  H.  R.  R. 

R.  Co.  v.  Priest,  206  N.  Y.  274 

(1912),  31 
People  ex  rel.  Corn  Hill  Realty  Co. 

v.  Stroebel,  209  N.  Y.  434;  103  N. 

E.  735  (1913),  286 
People  ex  rel.  Keller  v.  Village  of 

Oak  Park,  266  111.  365 ;  107  N.  E. 

636  (1914),  266 
People  ex   rel.   Sondern  v.  Walsh, 

108   Misc.    (N.   Y.)    193    (1919), 

287,  575 


Penn.  Mutual  Life  Ins.  Co.  v.  Phila- 
delphia, 242  Pa.  St.  47  (1913),  135 

Phelps  v.  City  of  New  York,  112 
N.  Y.  216  (1889),  573 

Pierce  Oil  Co.  v.  Hope,  127  Ark. 
38;  248  U.  S.  498  (1917,  1918), 
285 

Q 

Quintini  v.  Board  of  Aldermen,  64 

Miss.  483   (1886).  286 
Quong  Wo,  Ex  parte,  16  iCal.  220; 

118  Pac.  714  (1911),  285 
Quong    Wo,    In   re,    13   Fed.    Rep. 

229  (1882),  266 


Rathbone  v.  Wirth,  150  N.  Y.  459 

(1896),  565 
Rees,  Appeal  of,  8  Sadler  (Penn.) 

582    (1888),  391 
Reformed   P.   D.   Church  v.   M.  A. 

Bldg.  Co.  214  N.  Y.  268  (1915), 

285 
Reinman   v.   Little   Rock,    107  Ark. 

174  (1913) ;  237  u.  s.  171  (1915), 

285,  286,  287 


646 


INDEX  OF  CASES 


Reynolds  v.  Waterville,  92  Maine, 
292  (1898),  362 

Rochester  v.  West,  164  N.  Y.  510 
(1900),  286 

Roerig  v.  Houghton,  144  Minn.  231 ; 
175  N.  W.  542  (1919),  285 

Rogers  v.  Common  Council  of  Buf- 
falo, 123  N.  Y.  173  (1890),  565 

Romar  Realty  Co.  v.  Board  of  Com- 
missioners (N.  J.),  114  Atl.  248, 
284 

Russell,  Matter  of,  158  N.  Y.  Supp. 
162  (1916),  266,  286 


St.    Louis    v.    Dorr,    145    Mo.    466 

(1898),  285 
St.  Louis  v.  Evraiff  and  Friedman, 

Mo.   Sup.   Ct.,   Oct.   Term,    1921, 

284,  292 
St.    Louis    v.    Hill,    116    Mo.    527 

(1893),  279 
St.  Louis  v.  Russell,  116  Mo.  248; 

22  S.  W.  470  (1893),  266,  286 
St.  Paul  v.  Kessler,  146  Minn.  124; 

178  N.  W.  171  (1920),  286 
St.  Louis  Gunning  Adv.  Co.  v.  St. 

Louis,  235  Mo.  99  (1911),  395 
St.    Louis    Poster   Adv.   Co.   v.   St. 

Louis,  249  U.  S.  269  (1919),  395 
Sam  Kee  v.  Wilde  183  Pac.  Rep.  164 

(1919),  266,  285 
San  Diego  Tuberculosis  Hospital  v. 

City  of  East  San  Diego,  200  Pac. 

393  (1921),  287 
Schwartz    v.    Brownlow,    50    App. 

D.  C.  279;  270  Fed.  1019  (1921), 

284 
Scott  v.  Saratoga  Springs,  131  App. 

Div.  3.17  (1009),  565 
Sears  v.  St.  Com'rs,  180  Mass.  274 

(1902),  371 
Seattle,    etc.,     Co.     v.     Seattle,    37 

Wash.  274  (1905),  57 
Shea  v.   City  of   Muncie,   148  Ind. 

14;  46  N.  E.  138  (1897).  285 
Shepard   v.    Seattle,   59  Wash.   363 

(1910),  266 
Shiras    v.    Olinger,    50    Iowa    571 

(1879),  286 
Shoemaker  v.  U.  S.,  147  U.  S.  282 

(1892-1893),    382,    384,    385,    386, 

389,  390 
Sing   Lee,    Ex   parte,   96   Cal.   354 

(1892),  266 


Sinking  Fund  Cases,  99  U.  S.  700 

(1878),   141 
Smith   v.    Hosford,    106   Kans.   363 

(1920),  279 
Smolensky  v.  City  of  Chicago,  282 

111.  131   (1917),  285 
South  Orange  v.   Heller,  92  N.  J. 

Eq.  Rep.  505  (1921),  279,  286 
Spann  v.  City  of  Dallas,  189  S.  W. 

999  (1916),  285 
Spokane   v.   Camp,   50  Wash.   554; 

97  Pac.  770  (1908),  266,  286 
Spring  Valley  Water  Works  v.  San 

Francisco,  61  Cal.  3  (1881),  564 
Standard   Oil  Co.   v.   Danville,   119 

111.  50;  105  N.  E.  15  (1902),  285 
Stoughtenburg  v.   Herrick,    129   U. 

S.  141  (1889),  535 
Strickley  v.   Highland  Boy  Mining 

Co.,  200  U.  S.  527  (1906),  21 
Struck  v.  Kohler,  187  Ky.  517;  219 

S.  W.  435   (1920),  284 
Stubbe  v.  Adamson,  Matter  of,  220 

N.  Y.  459   (1917),  575 
Stubbs   v.    Scott,    127   Md.  86;   95 

Atl.  1060  (1915),  285 
Sweet    v.    Rechel,    159    U.    S.   380 

(1895),  140,  143 

State  v. 

State    v.    Carragan,    Collector,    36 

N.  J.  Law  Reports  52  (1872),  31 
State  v.   Darnell,   166  N.   Car.   300 

(1914),  287 
State  v.  Gurry,  121  Md.  534  (1913), 

287 
State  v.  Moore,  7  Wash.  173  (1893), 

32 
State  v.  Newton,  3  Tenn.  Civ.  App. 

93  (1912),  286 
State  v.  Plummer,  97  Ore.  518;  189 

Pac.  405;  191  Pac.  883  (1920),  285 
State  v.  Register  of  Deeds,  26  Minn. 

521   (1880),  32 
State  v.   Whitlock,    149  N.   C.   542 

(1908),  286 

State  ex  rel. 

State  ex  rel.  Roerig  v.  City  of 
Minneapolis,  n6  Minn.  479;  162 
N.  W.  477  (1917),  285 

State  ex  rel.  Westminster  Presby- 
terian Church  of  Omaha  v.  Edge- 
comb,  pending  in  Nebr.  State 
Supr.  Ct.,  285,  287 


INDEX  OF  CASES 


647 


State  ex  rel.  Nehrbass  v.   Harper, 

162    Wise.    589    (1916),    266,   286 
State  ex  rel.  Banner  v.  Houghton, 

142    Minn.    28;    170    N.    W.    853 

(1919),  286 

State  ex  rel.  Lachtman  v.  Hough- 
ton,    134   Minn.    226    (1916),    285 
State  ex  rel.  Twin  City  Bldg.  and 

Investment  Co.  v.  Houghton,  144 

Minn,  i ;  174  N.  W.  885 ;  176  N. 

W.  159  (iQiQ),  284,  285,  289 
State  ex  rel.  Morris  v.  Osborn,  22 

Ohio  N.  P.   (N.  S.)   549  (1920), 

285,  288 
State  ex  rel.  Blaise  v.  New  Orleans, 

142  La.  73;  76  So.  244  (1917),  285 
State  ex  rel.  Krittenbunk  v.  With- 

nell,  91  Neb.  102;  135  N.  W.  376 

(1912),  286 
State   ex    rel.    Omaha   Gas    Co.   v. 

Withnell,  78  Neb.  33  (1907),  266, 

286 


Talbot  v.  Hudson,  16  Gray  (Mass.) 

417  (1860),  141 
Telford    v.    Belknap,    126   Ky.   244 

(1907),  266 
Tennessee  v.  Newton,  3  Tenn.  Civ. 

App.  93  (1912),  286 
Town   of   Cuba   v.    Mississippi   Oil 

Co.,    150    Ala.    259;    43    So.    706 

(1907),  286 
Turlock      Irrigation      District      v. 

Williams,  76  Cal.  360  (1888),  23 

U 

United  States  v.  Gettysburg  Elec. 
R'y  Co.,  160  U.  S.  668  (1896),  385, 
389 

V 

Van  Husan  v.  Heames,  96  Mich, 
504  (1893),  32 


Varney  &   Green  v.   Williams,   155 

Call.  318  (1909),  286 
Veazie    Bank    v.    Fenno,    8    Wall. 

(U.  S.)  533   (1869),  376 
Village  of  South  Orange  v.  Heller, 

92  N.  J.  Eq.  Rep.  505  (1921),  279, 

286 

W 

Walcher      v.      First      Presbyterian 

Chuich,  76  Okla.  9;  184  Pac.  106 

(1909),  286 
Watertown  v.  Mayo,  109  Mass.  315 

(1872),  286 
Weeks  v.  Heurich,  40  App.  D.  C. 

46  (1913),  266,  286 
Welch   v.    Swasey,    193    Mass.    364 

(1908);    affirmed    214   U.    S.    91 

(1909),  23,  284,  287,  393 
Wells  v.  St.  Com'rs.,  187  Mass.  451 

(1905),  37i 
West    Side   Mortgage   Co.   v.   Leo, 

Matter  of,   174  N.  Y.  Supp.  451 

(1919),  286,  287,  575 
Whitridge  v.  Park,   100  Misc.  367; 

165  N.  Y.  Supp.  640;   179  A.  D. 

884  (1917),  285,  286 
Williams  v.  Boston,  190  Mass.  541 

(1905-1906),  385 
Williams  v.  Parker,   188  U.  S.  492 

(1902-1903),  385 
Williams    v.    Wolfgang,    151    Iowa 

548  (1911),  286 
Willison  v.  Cooke,  54  Col.  320;  130 

Pac.    828    (1913),    266,    284,    285 
Wilshire,  Matter  of,   103  Fed  Rep. 

620  (1900),  395 
Windsor  v.  Whitney,  95  Conn.  357 

•(1920),  31,  36,  138,  279,  573 
Winston  v.  Spokane,  12  Wash.  524 

(1895),  362 
Woodstock   v.    Gallup,   28  Vt.   587 

(1856),  382 
Wurtz  v.  Hoagland,  114  U.  S.  606 

(1885),  145 


INDEX  OF  STATUTES 

NOTE:   Page   references   in   black   face  type  indicate  that  the  text  of 
the  statute  is  given  in  whole  or  in  part. 

PAGE 

UNITED  STATES.     Constitution  XlVth  Amendment 24,  45,  46 

Compiled  Statutes,  1916,  sec.  1214 25 

Judicial  Code,  sec.  237   25 

4  Statutes  at  Large  708 597 

ALABAMA.     1919,  p.  880  563 

CALIFORNIA.     1915,  ch.  757,  p.  1514 544,  603-604 

1917,  ch.  734,  p.  1419 291 

1917,   ch.    740,    p.    1514 553,  566 

Alameda.      Zoning    ordinance,    1919 275^277,  341-355 

Los  Angeles.     Zoning   ordinance 191,  201,  267 

— .     Ordinance,  1918,  No.  38,315,  n.  s.   (June  25) 418 

San  Francisco.    Ordinance,  No.  4059,  n.  s.   (Feb.  16) 418 

CONNECTICUT.     General   Statutes,    1918,  ch.   168 411 

General    Statutes,    1918,    sees.    391-396 31,  177 

ibid.,   sees.    519    ff 177 

1907,    ch.    186    387 

1907;   15  Special  Laws,  p.  43   (No.  61) 554,  559,  563 

1909;   15  ibid.,  p.  634  (No.  34) 554,  559 

1909;   15  ibid.,  p.  661    (No.  74) 554,  559 

1913 ;   16  ibid.,  p.  1035    (No.  351) 562 

1917;    17   ibid.,  p.  827    (No.    133) 36 

Bridgeport.     Ordinance,  1913,  Aug.  18 555 

DISTRICT  OF  COLUMBIA. 
30  U.  S.  Stat.  922,  ch.  322  (March  I,  1899) 265 

32  ibid.  1022,  ch.  997   (March  3,  1903) 265 

33  ibid.  14,  ch.   158  (Feb.  16,  1904) 265 

36  ibid.  452,  ch.  263  (June  I,  1910) 265,  566 

41   ibid.   500,   ch.   92    (March    i,    1920) 301-304,566 

ILLINOIS.  1915,  p.  260 563 

1919,  p.  262 281 

1921,  p.  180 281 

Chicago.  Code,  sec.  450 193 

INDIANA.  Burns'  Annot.  Ind.  Statutes,  1914,  sec.  8753 184-185 

1911,  p.  566 184-185 

Indianapolis.  Zoning  ordinances,  1905,  1912 265 

MARYLAND.      1904,   ch.   42 265,  393 

MASSACHUSETTS.  Constitution,  ch.  III.  art.  II 135 

Constitution.  Amendment,  art.  39 129,  131,  148 

ibid .  ibid.,  art.  43 57 

ibid,  ibid.,  art.  50 395 

ibid,  ibid.,  art.  60 289,  293,  566 

General  Laws,  1920,  ch.  40,  sees.  25-30 289 

ibid.,  ch.  41,  sec.  80 i°4 

ibid.,  ch.  45,  sec.  n • 387 

649 


6so  INDEX  OF  STATUTES 


MASSACHUSETTS.    General  Laws,  ibid.,  ch.  82,  sec.  37 184 

ibid.,  ch.  93,  sees.  29-33 395 

ibid.,  ch.   143,  sec.  3 289 

1867,   ch.   308 140,  141 

1893,   ch.   462 177,  184 

1898,  ch.  452 386 

1899,  ch.    457 387 

1901,  ch.  525. 387 

1902,  ch.   543 3^7 

1904,    ch.    443 68,  128,  129,  130 

1908,   ch.    117 140 

1910,  ch.    606 140 

191 1,  ch.    84 589 

191 1,  ch.  607 553 

1912,  ch.   186 153 

1913,  ch.  595 553 

1915,  ch.   165 562 

1919,  ch.  350 553 

1920,  ch.    601 568 

Special  Acts,  1904,  ch.  333 266 

ibid.,  1905,  ch.  383 266 

ibid.,  1907,  ch.  416 266 

ibid.,  1912,  ch.  582 

ibid.,  1914,  ch.  786 

ibid.,  1915,  ch.  333 266 

ibid.,  1919,  ch.  156 266 

MICHIGAN.     1921,  No.  207 

Detroit.    Charter,  ch.  X,  sec.  7 562,  563 

MINNESOTA.     1919,  ch.  292,  p.  300 562,  563,  576-578 

MISSOURI.      1921,   p.  481 277,  568 

St.  Louis.    Charter,  art.  vi,  sec.  i  388 

— .     Billboard  ordinance 394 

NEW  JERSEY.    Compiled  Statutes,  1910,  vol.  Ill,  p.  3544 383 

P.  L.  1833-1834,  p.  118 550,  597 

P.  L.  1870,  p.  311,  ch.  117 128,  149-150 

P.  L.  1893,  P.  496,  ch.  285 383 

P.  L.  1895,  p.  88,  ch.  28 419 

P.  L.  1898,  p.  439,  ch.  191 }i<) 

P.  L.  191 1,  p.  103,  ch.  71 558 

P.  L.  1912,  p.  267,  ch.  177 550 

P.  L.  1913,  p.  1 12,  ch.  72 558 

P.  L.  1913,  p.  281,  ch.  170 55«S 

P.  L.  1914,  p.  205,  ch.  123 550-552 

P.  L.  1915,  p.  350,  ch.  188 559,  565.  578  581 

P.  L.  1916,  p.  377,  ch.  175 559,  565,  578  581 

P.  L.  1917,  p.  94,  ch.  54 567,  568 

P.  L.  1917,  p.  288,  ch.  130 549.  597 

P.  L.  1918,  p.  338,  ch.  146 sf.- 

P.  L.  1918,  p.  567,  ch.  185,  art.  XVI 554,  603 

P.  L.  1920,  p.  414,  ch.  216 559,  565.  578-581 

P.  L.  1920,  p.  436,  ch.  229 298  301 

P.  L.  1920,  p.  455,  ch.  240 292,  56* 

P.  L.  1920,  p.  496,  ch.  274 567. 

P.  L.  1921,  p.  41  j,  ch.  151 55" 

P.  L.  1921,  p.  423,  ch.  152 550,  597 

P.  L,  1921,  p.  816,  ch.  276 


INDEX  OF  STATUTES  651 

PACK 

NEW  JERSEY.  P.  L.  1922,  y.  25,  ch.  9 550,  599 

P.  L.  1922,  p.  159,  ch.  8? 419 

P.  L.  1922,  p.  277,  ch.  162 566,  567 

Elisabeth.  Zoning  ordinance  278 

Newark.  Zoning  ordinance  277 

NEW  YORK.  Constitution,  art.  VIII,  sec.  10 361-362 

Constitution,  art.  X,  sec.  2 565 

ibid.,  amdt.  to  art.  I,  sec.  7  (Nov.  4,  1913)  No.  53,131 149 

General  City  Law,  sec.  21 382 

ibid.,  sees.  81-83  295-298,  567,  568 

General  Municipal  Law,  art.  I2A,  sees.  234-2393 559,  581-584 

Tenement  House  Law  192 

1812,  ch.  174  70,  128,  129,  133 

1834,  ch.  8 550,  597 

1868,  ch.  631 .371 

1869,  ch.  861  371 

1891,  ch.  4 372 

1899,  ch.  257  388 

1900,  ch.  170 390 

1901,  ch.  334  192 

1903,  ch.  336  387 

1907,  ch.  594  383 

1910,  ch.  276  362 

191 1,  ch.  880 387 

1913,  ch.  247  382 

1913,  ch.  551 192 

1913,  ch.  699 559,  581-584 

1913,  ch.  757 387 

1914,  ch.  470  293-295,  566,  567,  573 

1915,  ch.  109  554 

1915,  ch.  545  372-373 

1915,  ch.  593  153 

1915,  ch.  596  53 

1915,  ch.  606  153 

1916,  ch.  112  153-159 

1916,  ch.  497  293-295,  573 

1916,  ch.  503  293-295,  573,  575 

1916,  ch.  599  383 

1917,  ch.  426  549,  597 

1917,  ch.  483  295-298 

1917,  ch.  601  293-295 

1917,  ch.  631  180,  185-189,  561 

1917,  ch.  632  561 

1919,  ch.  648 192 

1920,  ch.  377  559,  581-584 

1920,  ch.  743  295-298,  567 

1921,  ch.  154 550,  597-603 

1921,  ch.  203  55°,  597 

1922,  ch.  43  550,  599 

1922,  ch.  322   281 

New  York  City.    Charter,  sees.  71 ;  83-84 

— .  ibid.  sees.  242-3,  242-b 293-295 

— .  ibid.  sec.  247  368-369 

— .  ibid.  sees.  633-^639  564.  584-587 

— .  ibid.  sec.  7i8-d  295,  568 

— .  ibid.  sec.  719 574 


6$2  INDEX  OF  STATUTES 

PAGE 

NEW  YORK.  Nnv  York  City.    Charter,  ibid.,  sec.  970 185-187 

— .  ibid.  sees.  97O-a,  97O-b 153-159 

— .  ibid.  sees.  972-973   593 

— .  ibid.  sec.  976   187-189 

— .  ibid.  sees.  I43I-I453  53 

— .  Code  of  Ordinances,  eh.  23,  art.  16,  sec.  215 419 

— .  Zoning   Resolution,   adopted   July   25,   1916   and   amended    from 

time  to  time    268-276,  290,  305-323,  402 

Schenectady.    Ordinance,  Dec.  9,  1912 50.' 

White  Plains.     Zoning  ordinance 278 

OHIO.    Constitution,  art.  XVIII,  sec.  10 130,  132,  148 

General  Code,  1910,  sec.  3677 129,  151 

ibid.  sees.  4366-7  to  4366-12 566 

Municipal  Code,  1902 129 

1904.    97  v.  333  129,  151 

1919.     1 08  v.  1 175  566 

Akron.     Charter,  sec.  102  562 

Cincinnati.    Ordinance,  1919,  No.  25  (Jan.  28) 418 

Cleveland.    Charter,  sec.  77  559,  587 

— .  Ordinance,  No.  52,247-AB  (Dec.  6,  1920) 280,  57- 

East  Cleveland.    Zoning  ordinance  of  July,  1919 288 

Toledo.    Ordinance,  1920,  No.  1839  (May  17) 418 

OREGON.    Laws,  1920,  sec.  3837-3840 131,  151-152 

Laws,  1920,  sec.  3874 291 

1913,  ch.  269   131,  151-152 

1919,  ch.  300 506 

1921,  ch.  343   388 

PENNSYLVANIA.     Constitution,  art.  IX,  sec.  8 361 

1868,  Apr.  14;  P.  L.  1087 i->8 

1871,  June  6;  P.  L.  1353 5*7 

1891,  May  16;  P.  L.  75 587-588 

191 1,  May  31 ;  P.  L.  468 588 

1911,  June  10;  P.  L.  872 5*<> 

1913,  May  23 ;  P.  L.  339 ' 547,  594-597 

1913,  July  16;  P.  L.  752 589 

1913,  July  22;  P.  L.  902 587-588 

1915,  June  i ;  P.  L.  705 547,  594 

1919,  Apr.  4;  P.  L.  45 553,  604-605 

1919,  June  25 ;  P.  L.  581 567 

1921,  Apr.  6 ;  P.  L.  107 177.  588 

1921,  Apr.  26;  P.  L.  295 177 

1921,  May  17 ;  P.  L.  841 

1921,  May  17 ;  P.  L.  844 i/7,  587-588 

Philadelphia.    Ordinances,  March  31,  1884; 

June  23,  1888;  June  30,  1892;  June  9,  1900 i?7 

RHODE  ISLAND.    Constitution,  art.  XVII,  sec.  1 131.  149 

1917,  ch.  1560 131.  159-160 

Providence.    Ordinances,  1913,  Dec.  2  (Ch.  599,  No.  407) 555 

Soi  TH  CAROLINA.     1817.    7  Statutes,  136 i.U 

VIRGINIA.    Constitution,  art.  VIII,  sec.  127 

Code  of  1919.  sec.  3065 129,  130,  131,  152-15 

WISCONSIN.    Constitution,  art.  XI,  sec.  3a 130,  13'.  148-1' 

1909,  ch.  95   ^ 

191 7,  ch.  404  5 

1917,  ch.  507  -i3*  '3i 


INDEX  OF  STATUTES  653 

PAGE 

WISCONSIN,  Milwaukee.    Zoning  Ordinance.     (Milwaukee  Code,  1914, 
sees.  26.3  to  26.77)    277,  280,  323-341 

PHILIPPINE  ISLANDS.    32  U.  S.  Stat.  691,  ch.  1369  (July  i,  1902) 393 

39  U.  S.  Stat.  545,  ch.  416  (Aug.  29,  1916) 393 

CANADA  :  DOMINION.    Revised  Statutes,  1906,  vol.  3,  ch.  143 67 

1911,  ch.  6   382 

ABERTA.     1913,  ch.  18  5IO 

Edmonton,    Resolutions  of  City  Council,  Sept.  29,  1919 41-42 

BRITISH  COLUMBIA.    Revised  Statutes,  1911,  ch.  128,  p.  1469 74 

MANITOBA.    Revised  Statutes,  1913,  ch.  69,  sec.  7 68 

Revised  Statutes,  ch.  133,  sec.  483 372 

ibid.,  ch.  133,  sec.  561 361 

ibid.,  ch.  133,  sec.  691 68 

1916,  ch.  114  265,  510 

NEW  BRUNSWICK.    1912  (2  Geo.  V)  ch.  19 510 

NOVA  SCOTIA.    1912  (2  Geo.  V)  ch.  6 510 

IQIS  (5  Geo.  V)  ch.  3 510 

Halifax.    City  Charter,  1914,  sees.  683,  698 74,  512 

ONTARIO.    Revised  Statutes,  1914  (Munic.  Corp.)  ch.  192,  sec.  322.  .68,  74, 

Revised  Statutes,  1914  (Local  improvements)  ch.  193 .'  372 

1911  (i  Geo.  V)  ch.  119 74 

1917  (7  Geo.  V)  ch.  44 510,  513 

1918  (8  Geo.  V)  ch.  38 510,  513 

1919  (9  Geo.  V)  ch.  53 510,  513 

1920  (10-11  Geo.  V)  ch.  60 510,  513 

1921  (11  Geo.  V)  ch.  63 74,  265,  510,  513 

Toronto.     Charter   74 

PRINCE  EDWARD  ISLAND..  1918,  ch.  7 510 

QUEBEC.     Revised  Statutes,  1909,  art.  5638 392 

1909  (9  Edw.  VII)  ch.  80,  sec.  4 392 

1912  (3  Geo.  V)  ch.  54,  sec.  20 74 

Montreal.    Charter,  art.  421 74 

SASKATCHEWAN.    Revised  Statutes,  1920,  ch.  104 265,  510 

1915,  ch.  16  56,  361 

1916,  ch.  19 74,  361,  372  382,  392 

1917,  ch.  70 510 

1918-19,  ch.  40 510 

1919-20,  ch.  29 510 

ENGLAND.    8  &  9  Viet.  ch.  18  (Land  Clauses  Consolidation  Act,  1845) 

67,  71,  73 

II  &  12  Viet.,  ch.  63  (Public  Health  Act,  1848) 498 

14  &  15  Viet.,  ch.  28  (Common  Lodging  Houses  Act,  1851) 81 

14  &  15  Viet.,  ch.  34  (Labouring  Classes  Lodging  Houses  Act,  1851)     81 
31  &  32  Viet.,  ch.  130  (Artizans  and  Labourers  Dwellings  Act,  1868)     81 
38  &  39  Viet.,  ch.  36  (Artizans  and  Labourers  Dwellings  Improve- 
ment Act,   1875)    8l.  88-90 

38  &  39  Viet.,  ch.  55  (Public  Health  Act,  1875) 498 

45  &  46  Viet.,  ch.  73  (Ancient  Monuments  Protection  Act,  1882) . . .  399 
51  &  52  Viet.,  ch.  52  (Public  Health  Buildings  in  Streets  Act,  1888) .  498 

53  &  54  Viet.,  ch.  59  (Health  Amendment  Act,  1890) 498 

53   &  54  Viet.,   ch.   70    (Housing  of   Working   Classes  Act,   1890) 

75,  88-90,  518,  525 

57  &  58  Viet.,  ch.  213  (London  Building  Act,  1894) 421 

63  &  64  Viet.,  ch.  34  (Ancient  Monuments  Protection  Act,  1900) 399 

7  Edw.  VII.,  ch.  27  (Advertisements  Regulation  Act,  1907)  420,  441-442 


654  INDEX  OF  STATUTES 

PAGE 

ENGLAND.     7   Edw.  VII.,  ch.   53    (Public   Health   Acts   Amdt.   Act, 

1907)   421,  498 

9   Edw.   VII.,  ch.  44    (Housing,  Town   Planning,   etc.,  Act,   1909) 

3,  74,  201,  218,  265,  364,  369,  499-510.  Si8,  519-529 

9  Edw.  VII.,  ch.  47   (Development  and  Road  Improvement   Funds 
Act,   1909)    7i 

10  Edw.  VII.,  ch.  8  (Finance  (1909-1910)  Act,  1910) 358 

3    &   4    Geo.    V.,    ch.   32    (Ancient    Monuments    Consolidation    and 

Amendment  Act,  1913)   399-4OO,  421,  432-441 

9  &  10  Geo.  V.,  ch.  21  (Ministry  of  Health  Act,  1919) 498,  501 

9  &  10  Geo.  V.,  ch.  35   (Housing,  Town  Planning,  etc.,  Act,  1919) 

3,  74,  82,  201,  369.  499-510,  518-529 

9  &  10  Geo.  V.,  ch.  57  (Acquisition  of  Land  (Assessment  of  Com- 
pensation)  Act,   1919)    47.  54,  73,  74,  75 

9  &  10  Geo.  V.,  ch.  60  (Housing,  Town  Planning,  etc.   (Scotland) 

Act,   1919) Sio 

Birmingham.     1913;  Aug.  13.     East  Birmingham  Planning  Scheme 

(as  amd.  May  30,   1918)    506-509 

Chesterfield.    1916;  Sept.  4  (Chester  St.  Area).    Planning  Scheme..  503 

Dunfermline   (Scotland).     1920;  May  7.     Planning  Scheme 503 

Leeds.    1921;  Oct.  14  (Buckingham  House).     Planning  Scheme 503 

North  Brumsgrove.    1915;  Dec.  13  (Rubery).    Planning  Scheme)..  503 

Otley.     1921 ;   Oct.   14.     Planning  Scheme 5°3 

Rochdale.     1915;  Jan.  20  (Marland).     Planning  Scheme 503 

INDIA:  BENGAL. 

191 1,  No.  V.    Calcutta  Improvement  Act 88 

BOMBAY.  1898,  No.  IV 88 

1915,  No.  I  510 

MADRAS.    1920,  Aug.  28 510 

AUSTRALIA.     QUEENSLAND.     Statutes,  1911    (Land  Resumption  Act  of 

1906)  vol.  3,  p.  3608 73 

SOUTH  AUSTRALIA.    1920  (11  Geo.  V)  No.  1452 510 

NEW  ZEALAND.    Consolidated  Statutes,  1908,  No.  124 88 

(Municipal  Corporations) 

Consolidated  Statutes,  1908,  No.  160  (Public  Works) 73,  74,  382 

ibid.,  No.  172  (Scenery  Preservation)    382 

PALESTINE.    Jerusalem.    Planning  ordinance 510 

FRANCE.    Declaration  of  Rights,  1789 66 

Constitution  of  1791.     Declaration  of  Rights 13,    66 

Civil  Code,  art.  545   13,    66 

Penal  Code,  art.  463   422,  432 

1807.    Bulletin  des  lois.  IV*  sen,  Bull.  162,  No.  2797... 66,  67,  75,  7- 

1810.    ibid.,  IV  sen,  Bull.  273,  No.  5255 66,    67 

1810.    ibid.,  IV*  ser.,  Bull.  323,  No.  6059 210 

1833.    ibid.,  IX*  ser.,  Bull.  107,  No.  241 66,  67,    69 

1841.    ibid.,  IX*  ser.,  Bull.  808,  No.  9285 66,  67.  69,  76,    77, 

91-105,  364,  4- 

1850.    ibid.,  X«  ser.,  Bull.  252,  No.  2068 70 

1852.    ibid.,  X«  sen,  Bull.  514,  No.  3914 77,  78,  382 

1858.    ibid.,  XI«  ser.,  Bull.  656,  No.  61 1 1 7* 

1871.    ibid.,  XII«  ser.,  Bull.  61,  No.  484 

1876.    ibid.,  XII"  ser.,  Bull.  305,  No.  5251 78 

1881.    ibid.,  XII«  ser.,  Bull.  637,  No.  10,850 4-^ 

1884.     ibid.,  XII«  ser.,  Bull.  835,  No.  14,221 529,  530,  534 

1887.    ibid.,  XII«  s*r.,  Bull.  1076,  No.  17,739 424,  432 

1892,    ibid.,  XII«  sir.,  Bull.  1523,  No.  25,892 4-7 


INDEX  OF  STATUTES  655 

PAGE 

FRANCE.     1902,  ibid.,  XIP  ser.,  Bull.  2348,  No.  41492 420 

1902.    ibid..  XIle  ser.,  Bull.  2348,  No.  41,496 76,  533 

1005.    ibid..  XIIe  ser.,  Bull.  2663,  No.  46,547 432 

1906.  ibid.,  XII«  ser.,  Bull.  2736,  No.  47,7 13 399,  422-423,  530 

1909.  ibid.  nouv.  ser.,  Bull.  14,  No.  623 432 

1910.  ibid.,  nouv.  ser.,  Bull.  31,  No.  1447 530 

1910.  ibid.,  nouv.  ser.,  Bull.  32,  No.  1481 420 

1911.  ibid.,  nouv.  sen,  Bull.  61,  No.  2933,  art.  118 78,  364,  382 

1912.  ibid.,  nouv.  ser.,  Bull.  79,  No.  3950 78,  382 

1912.  ibid.,  nouv.  ser.  Bull.  75,  No.  3703 432 

1912.  ibid.,  nouv.  ser.,  Bull.  85,  No.  4336 420 

1913.  ibid.,  nouv.  ser.,  Bull.  120,  No.  6459 397,  420,  423-432 

1914.  ibid.,  nouv.  ser.,  Bull.  128,  No.  6926 91,  99,  101 

1915.  ibid.,  nouv.  ser.  Bull.  156,  No.  8736 74,     76 

1918.    ibid.,  nouv.  ser.,  Bull.  237,  No.  13,222 76,  79,  91-105 

1918.  ibid.,  nouv.  ser.,  Bull.  238,  No.  13,350 514 

1919.  ibid.,  nouv.  ser.,  Bull.  245,  No.  13,810 514 

1919.    ibid.,  nouv.  ser.,  Bull.  245,  No.  13,850 499,  514-517,  529-534 

1919.    ibid.,  nouv.  ser.,  Bull.  248,  No.  14,081 514 

1921.    ibid.,  nouv.  ser.  Bull.  302,  No.  19,639 91,  93,  97,  100-105 

Paris.    Council  votes,  1897,  Dec.  6,  20 ;  1908,  June  19 407 

Prefectorial  decrees,  1898,  Feb.  2;  1909,  May  18 407 

GERMANY.     Constitution,    1849    13 

Constitution,    1871    13 

Biirgerliches  Gesetzbuch  (Civil  Code)   sees.  1090-1092 125,  126 

Reichsgewerbeordnung    (Imperial  Industrial  Law).... 210,  211,  448,  490 

1869.     Bundes-Gesetz   Blatt,   No.  312 210 

ANHALT.     1905;  June   19.     Building  Ordinance 220,  403,  421,  460,  461 

1906 ;   May  21    460 

1916 ;   Oct.   18    460 

BADEN.     1863,  Oct.  31.     Polizeistrafgesetzbuch 421 

1904.     Gesetzes-   und  Verordnungsblatt,  p.   397 421 

1907.  Sept.  i.     Building  Ordinance 220,  404,  449 

1908.  Gesetzes-  und  Verordnungsblatt,  p.  605 105,  460,  461 

Karlsruhe.     Building  Ordinance,  Mar.  29,  1912 216,  217,  263 

BAVARIA.     Polizeistrafgesetzbuch    404,  421 

1901 ;  Feb.  17.    Building  Ordinance  220,  403 

1908,  July  6 404,  421 

Munich.    Building  Ordinances.     1895;  July  29,  1900;  March  21 403 

— .  Building  Ordinance.     1904 ;  Apr.  20  264,  403 

— .  Building  Ordinance.     1910 ;  Aug.  3   403 

BRUNSWICK.     General  Building  Regulations   220 

HAMBURG.     1892 ;  Dec.  30  and  amendments   105 

HESSE.     1891;  April  30.     General  Building  Ordinance 85,  220 

1895,  July  15   85 

1902,  July  16 398,  400 

PRUSSIA.     1794.     Allgemeines  Landrecht  220,  400,  402 

1845.     Gesetz  Sammlung,  p.  41   210 

1850.     ibid.,  p.  265  220 

1867.     ibid.,  p.  1529  228 

1874.  ibid.,  p.  221   67,  113,  115,  120,  122,  471  473 

1875.  ibid.,  p.  561  67,  113,  124,  401,  451-457,  466-472,  473 

1883.    ibid.,  p.  195  121,  220,  228 

1893.    ibid.,  p.  152 470,  472 

1895.  ibid.,  p.  55i   86 

1896.  ibid.,  p.  82 86 


656  INDEX  OF  STATUTES 


PRUSSIA.     1899.    ibid.,  p.  291 i_>o 

1902.    ibid.,  p.  159  4-i 

1902.    ibid.,  p.  273  ("Lex  Adickes") 87,  105,  106-123,  451,  471 

1904.  ibid.,  p.  227  45' 

1905.  ibid.,  p.  179  61 

1907.    ibid.,  p.  259 105,  471 

1907.     ibid.,  p.  260 401,  403,  404,  421 

1914.  ibid.,  p.  159  473 

1915.  ibid.,  p.  57   473 

1918.  ibid.,  p.  23   57,  105,  215-216,  220,  401,  449, 

451,  455,  456,  466-474 

Altona.  1884,  Bulk  Zoning  Building  Ordinance 212 

Berlin,  1902.  Zone  Ordinances  for  Suburbs 216 

Cologne.  Building  Ordinance  262 

Dusseldorf.  Building  Ordinance  217,  250-261 

Frank f or t-on-t he- Main.  Ordinance,  1884,  July  15 403 

1891.  Building  Ordinances  213-215,  216,  227-250,  262  (Table) 

1900 ;  Feb.  27  400 

191 1 ;  Nov.  3  401 

1912 ;  June  4  403 

Hildesheim.  1899,  June  17  401 

SAXONY.  1834,  Gesetz-  und  Verordnungsblatt,  p.  141 85 

1855,  ibid.,  p.  483  487 

1861,  ibid.,  p.  117  85 

1873,  ibid.,  p.  275  4/6 

1900,  ibid.,  p.  381  84,  105,  221,  421,  449,  457-461,  474-495 

1900,  ibid.,  p.  428  477 

1904,  ibid.,  p.  163  84,  105,  421,  457-461,  474-495 

1909,  ibid.,  p.  219  404,  421 

Dresden.  Strassenbauordnung  84,  ->i<> 

Leipzig.  Ortsbauordnung,  1897,  sec.  34 84 

WURTTEMBERG.  1888 ;  Dec.  20,  art.  1 1 67 

1899 ;  July  28,  art.  209  67 

1910;  July  28.  Building  Ordinance.  .84,  220,  398,  400,  402,  404,  421,  461 
Stuttgart.  Zoning  Ordinances  216 

AUSTRIA.     Vienna.     1883 ;  Jan.  17.     Building  Ordinance  84 

BELGIUM.  Constitution,  1831  14 

1858.  Pasinomie  des  lois,  p.  217  (July  i ) 79 

1867.  ibid.,  p.  287  (Nov.  15)  79,  82,  382 

1919.  ibid.,  pp.  202,  215,  230  (May  10,  May  15,  June  i) 514 

GREECE.    Salonika.    Town  Planning  Act  87 

HOLLAND.    1851 ;  Aug.  28.    Expropriation  Law  

1886 ;  Apr.   15    495 

1901 ;    June   22.     Housing   Law    (amended    1902,    1903,    1905,    1906, 
1907,  1913,  1915,  1917,  1919)    74.  495-497 

ITALY.     1802.    Lex  Doria  Pamphili  396 

1821.    Lex  Pacca  396 

1865.     Raccolta  Ufficiale,  v.   12,   No.  2359   (June  25).. 67,  80,  44: 

465-466 

1889.    Raccolta  Ufficiale,  y.  91,  No.  5888  decies  (Dec.  23,  1888) jjo 

1909.    ibid.,  1909,  part,  prin.,  v.  3,  No.  364  (June  20) 396 

1912.    ibid..  1912,  part,  prin.,  v.  3,  No.  688  (June  23) 

JAPAN.    Law  No.  44 

1919.    Decrees  No.  261,  281    306,  307 

SWEDEN.     1874 ;  May  8.     Urban  Building  Act 447,  462,  463 

1907;  Aug.  31    84,  447,  4' 


INDEX  OF  STATUTES  657 

PAGE 

SWEDEN.  1917 ;  May  12 447,  462 

1919 ;  May  27  447 

SWITZERLAND.  VAUD.  Lausanne.  1898;  May  12.  Bulding  Police  Law  382 
1915,  Jan.  15  400 

ZURICH.    1893,  Apr.  23.    Building  Law  84,    86 


INDEX 

Abutting  Landowners,  see  LANDOWNERS. 

Acceptance  by  City,  works  of  art,  see  BEAUTY,  PROMOTION  OF- 
park  spaces,  see  PARKS  AND  PARKWAYS;  streets,  see 
STREETS  AND  HIGHWAYS.  See  also  CITIES  AND  TOWNS. 

Access,   right   of    riparian   owner,   navigable    streams,    171    and   note 


Accessories,  in  residence  districts,  268.     See  also  RESIDENCE  USES 

AND  DISTRICTS. 
Accessory  Garages,  see  GARAGES. 
Accidents,  influence  of  bulk  regulations,   195.     See  also  ZONE  REGU- 

LATIONS. 
Acquisition,  excess,  distinguished  from  excess  condemnation,  64;  of  land 

by  city,  see  LAND.     See  also  EMINENT  DOMAIN. 
Acquisition  of  Land  Act  (England),  74  note  26.    See  also  CONSTITU- 

TIONAL AND  STATUTORY  PROVISIONS. 
Acre,    number    of    buildings,    see    AREA    LIMITATIONS    AND    DIS- 

TRICTS. 
Adams,    Thomas,    criticism    of    term    "zoning,"    197    note    9.     See   also 

ZONING. 
Adickes,    Franz,    influence    on    bulk    zoning,    212-213.      See    also    LEX 

ADICKES. 
Adjustment  of  Boundaries,   East  Birmingham    (England)    scheme,  508 

note  20. 
ADMINISTRATION:    i.  In  General;  2.  Administrative  Methods  in 

General;  3.  Jurisdiction;  4.  Planning  Authorities;  5.  Procedure; 

6.  Penalties. 

Cross-references:      BEAUTY,    PROMOTION    OF    (6);    CITIES 

AND  TOWNS  (i,  4,  5);  EMINENT  DOMAIN  (7);  ENGLAND 

(i,  7)  ;    FRANCE    (5)  ;    GERMANY    (2,   6)  ;    HARBORS    AND 

WATER   FRONT    (i,  4,  5);   PARKS  AND   PARKWAYS    (6); 

PLANNING    (i,    11);    PLANNING    COMMISSIONS     (2,    3); 

PUBLIC  IMPROVEMENTS  (2)  ;  RECOMMENDATIONS  AND 

SUGGESTED     REFORMS     (i,    3,    7,     19);     SETBACKS     (i)  ; 

STATES  (2)  ;  STREETS  AND  HIGHWAYS  (2)  ;  TRANSPOR- 

TATION  (5);  ZONE  REGULATIONS   (i). 

1.  In  General:  importance,  443-44,  576;  development  in  United  States, 
unofficial  to  official  activity,  553-4. 

2.  Administrative    Methods   in   General:   execution   of   international 
or  interstate  plan,  9;  Italy,  444-446;  Sweden,  447,  462-464;  Germany, 
447-462;     England,     498-510;     Canada,     511-513;     France,    513-517; 
United  States,  535-576. 

3.  Jurisdiction:  national,  state  and  local  in  United  States,  535;  prob- 
lem in   metropolitan   planning,   7;    state    (Germany),  448-451;    state 
and  local  authorities  (Saxony),  457-459;  harbors  and  other  navigable 
waters,  national  and  state,  537  ;  state,  complete  except  as  limited  by 
United    States   and   state   constitution,   543;   city,   extension   beyond 

659 


660  INDEX 

limits,  usual  methods  criticised,  546;  commission,  matters  included, 
details,  561-2;  proposed  Metropolitan  Planning  Board   (Mass),  590. 

4.  Planning    Authorities:    discretionary    power,    criticism,    279;    Ger- 
many, 450;   Prussia,  452,  453,  472;  Saxony,  457-459;   England,  501; 
Ministry    of    Health     (England),    501-502;    "responsible  authority" 
(England),  501;  general  features  established  by  scheme,  details  by 
"responsible    authority"     (England),    505;    "responsible    authority." 
East    Birmingham    (England)    scheme,   506    note    20;    "responsible 
authority"    (Canada),    511;    planning    commissions    (France),  515; 
default   in  making  or  executing  plan,   mandamus    (England),   526; 
official  commission,  prevailing  form  in  U.  S.,  553 ;  decisions  reviewed 
by  Board  of  Appeals,  569;  planning  department   (Minnesota),  577. 

5.  Procedure:  eminent  domain,  importance,  49;  eminent  domain,  sur- 
vey,  51-55;   expropriation    (France),  68,   69,  91-105;    condemnation 
proceedings     (England),    73    note    23;     replotting,    85;     replotting 
(Zurich),  86,  87;  Housing  of  the  Working  Classes  Act,  1890  (Eng- 
land), 89-90;   Lex  Adickes    (Prussian   replotting  statute),    106-127; 
excess  condemnation    (New   York  City),    153-159;   New   York   City 
zoning  resolutions,  321-322;  Alameda  (Cal.)   ordinance,  352;  secur- 
ing adoption  of  plan   (France),  517;   preparation  and  adoption  of 
plan    (England),  522-523;  adoption  of   plan    (France),   529-534. 

6.  Penalties:    zoning    resolution    (New    York    City),   321-322;    zoning 
ordinance    (Milwaukee),  340;  ordinance   (Alameda,  Cal),  352;   law 
for  protection  of  objects  of  historic  and  artistic  interest  (France), 
431- 

Adoption  of  Plan,  see  PLAN. 

Advantages,   excess   condemnation,    see    EXCESS    CONDEMNATION; 

Prussian  control  over  new  building,  see   PRUSSIA ;   regional  plan 

by  U.  S.,  see  PLANNING;  setback,  see  SETBACKS;  use  zoning, 

see  USE  ZONING. 

Advertisements,  see  OUTDOOR  ADVERTISING. 
Advice,  by  planning  commission,  see  PLANNING  COMMISSIONS;  by 

state,  see  STATES;  by  United  States,  see  UNITED  STATES. 
Advisory  Powers,  art  commissions,  see  BEAUTY,  PROMOTION  OF; 

planning  commissions,   see    PLANNING   COMMISSIONS. 
Advisory   Regional   Plan   by   U.   S.   suggested,  541.     See   also    PLAN ; 

PLANNING. 

Esthetics,  see  BEAUTY,  PROMOTION  OF. 
Agreement,  see  CONTRACTS. 
Agricultural  Land,  see  LAND. 
Air,   excess   condemnation,    133;    tall   buildings,    196;    zoning   regulations, 

204  note  14   (4).     See  also  EXCESS  CONDEMNATION;  TALL 

BUILDINGS;  ZONE  REGULATIONS. 
Alameda  (Cal.),  height  limitations,  275;  zoning  ordinance,  341-353-     See 

also  HEIGHT  LIMITATIONS  AND  DISTRICTS;  CITIES  AND 

TOWNS;  ZONE  REGULATIONS. 
Alberta,  planning  law,  510  note  27. 
Algeria,  objects  of  historic  and  artistic  interest,  432.    See  also  BEAUTY, 

PROMOTION  OF. 

Alien  Structure,  see  NONCONFORMING  STRUCTURES. 
Allegations,    eminent    domain    pleading,    55-57.      See    also    EMINENT 

DOMAIN. 
Allocation,  land  for  particular  uses,  504.    See  also  DISTRICTS;  LAND; 

USES;  ZONING. 
Allowance,  of  compensation  for  land  taken,  see  EMINENT  DOMAIN; 

of  encroachments,  see  ENCROACHMENTS.     Sec  also  STREETS 

AND  HIGHWAYS. 


INDEX  661 

Alteration,  charter,  see  CITIES  AND  TOWNS ;  district  lines,  see  DIS- 
TRICTS ;  features  referred  to  planning  commission,  see  PLAN- 
NING COMMISSIONS;  maps,  see  MAPS;  nonconforming  struc- 
tures, see  NONCONFORMING  STRUCTURES;  nonconforming 
use,  see  NONCONFORMING  USES;  parks,  see  PARKS  AND 
PARKWAYS;  streets,  see  STREETS  AND  HIGHWAYS;  zoning 
regulations,  see  ZONE  REGULATIONS. 

Altona  (Germany),  bulk  zoning  ordinance,  212. 

Amendment,  charter  of  public  utility,  see  PUBLIC  UTILITIES;  consti- 
tution, see  CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS; New  York  City  charter,  see  NEW  YORK  CITY;  plan, 
see  PLAN;  zoning  regulations,  see  ZONE  REGULATIONS. 

Amenity,  promotion,  English  Town  Planning  Act,  502,  505.  See  also 
BEAUTY,  PROMOTION  OF. 

American  City  Planning  Institute,  scope  of  city  planning,  I  note  2.  See 
also  PLANNING. 

American  Rule,  encroachments  on  mapped  streets,  30.  See  also  EN- 
CROACHMENTS; STREETS  AND  HIGHWAYS. 

Amortization,  self-supporting  municipal  enterprises,  payments  deducted 
from  debt  limit,  361.  See  also  CITIES  AND  TOWNS. 

Amount,  benefit  assessments,  see  BENEFIT  ASSESSMENTS;  com- 
pensation, eminent  domain,  see  EMINENT  DOMAIN. 

Amusement  Grounds,  see  PARKS  AND  PARKWAYS. 

"Ancient  Monuments,"  definition  (England),  440;  outdoor  advertising 
(England),  440.  See  also  BEAUTY,  PROMOTION  OF;  OUT- 
DOOR ADVERTISING. 

Ancient  Monuments  Consolidation  and  Amendment  Act,  1913  (Eng- 
land), 432-44I- 

Andrews,  Judge  (N.  Y.),  police  power,  18. 

Anticipation,  of  city  problems,  i  note  2.  See  also  CITIES  AND 
TOWNS. 

Apartment  Houses,  see  RESIDENTIAL  USES  AND  DISTRICTS. 

Appeal,  to  U.  S.  Supreme  Court,  effect  of  limitation  of  right  on  social 
reform,  24;  from  decision  refusing  permission  to  build  on  mapped 
street,  34 ;  practice  under  New  York  zoning  law,  296-297 ;  practice 
in  England  generally,  506;  practice  under  East  Birmingham  (Eng- 
land) scheme,  508-509  note  20;  quick  hearing  and  decision  essen- 
tial, 569;  presumption  of  reasonableness  of  zoning  regulation,  572 
note  52;  presumption  of  correctness  of  decision  appealed  from,  575. 
See  also  ADMINISTRATION;  ENCROACHMENTS;  STREETS 
AND  HIGHWAYS;  ZONE  REGULATIONS. 

Appeals,  Boards  of,  see  BOARDS  OF  APPEALS. 

Application,  of  zoning  to  existing  conditions,  205  note  14  (7)  (8).  See 
also  ZONING. 

Appointment,  art  commissions,  see  BEAUTY,  PROMOTION  OF;  plan- 
ning commissions,  see  PLANNING  COMMISSIONS. 

Appropriation,  for  artistic  purposes,  see  BEAUTY,  PROMOTION  OF; 
for  public  use,  see  EMINENT  DOMAIN. 

Approval,  of  plan,  see  PLAN ;  of  plats,  see  PLATS ;  of  private  develop- 
ment plan  by  city  before  recording,  32;  of  subdivision,  see  SUB- 
DIVISIONS. 

Arbitrariness,  in  zoning,  205  note  14  (8).     See  also  ZONING. 

Architectural  Requirements,  (Prussia),  473;  Saxony,  490.  See  also 
BEAUTY,  PROMOTION  OF. 

Area  of  Assessment,  benefit  assessments,  367-369.  See  also  BENEFIT 
ASSESSMENTS;  LANDOWNERS. 


662  INDEX 

AREA  LIMITATIONS  AND  DISTRICTS:     i.  In  General;  a.  Laws 

and    Ordinances;    3.  Area    Units    and    Districts;    4.  Buildings; 

5.  Families  per  Unit;  6.  Rear  Lands  and  Yards. 

Cross-references:   ENGLAND  (5)  ;  GERMANY  (5)  ;  NEW  YORK 

CITY   (6);   ORDINANCES   (i);  RECOMMENDATIONS  AND 

SUGGESTED    REFORMS    (8);    RESIDENTIAL    USES    AND 

DISTRICTS    (2). 
i.  In  General:   definition,  examples,   effect  on  land   values,   197,  209; 

history  (England),  498;  compensation  to  landowner  (England),  509. 
a.  Laws   and   Ordinances:    Germany,   224-225;    Frankfort,   230    (sec. 

10),  245-246    (sec.  7),  262   (No.    i);  Diisseldorf,  253,  256-258,  261; 

Cologne,  262  (No.  2)  ;  Karlsruhe,  263   (No.  3)  ;  Munich,  264  (No. 

4);    New    York   City,   270-271,   275-276;   Alameda    (Cal.),   347-349; 

Saxony,  458-459,  476-478,  491-4931   Prussia,  474;  England,  500,  503, 

504;  Ontario,   513;   Minnesota,  577. 

3.  Area  Units  and  Districts:   New  York  City,  268,  270-271,  314-319, 
566;  Milwaukee,  330-337;  East  Birmingham  (England)    scheme,  506 
note  20. 

4.  Buildings:  city  planning  may  deal  with  area  of,  5;  area  of,  part  of 
city  plan,  27;  number  on  acre   (England),  503-504. 

5.  Families  per  Unit:  number  on  area  unit,  277. 

6.  Rear    Lands   and   Yards:     New   York   City,   317-318;    Milwaukee. 
330;  Alameda   (Cal.),  349;  Saxony,  458-459,  476,  478. 

Area  Zoning,  constitutionality,  287.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  ZONING. 

Arsenals,  see  UNITED  STATES. 

Art  Censorship,  avoidance  of  dangers,  406.  See  also  BEAUTY,  PRO- 
MOTION OF. 

Art  Commissions,  see  BEAUTY,  PROMOTION  OF. 

Art  Departments,  see  BEAUTY,  PROMOTION  OF. 

Art,  Works  of,  see  BEAUTY,  PROMOTION  OF. 

Artistic  Places,  see  BEAUTY,  PROMOTION  OF. 

Assessments,  Benefit,  see  BENEFIT  ASSESSMENTS. 

Associations,  see  SOCIETIES. 

Attached  Houses,  see  RESIDENTIAL  USES  AND  DISTRICTS. 

Australia,  debiting  value  of  improvements  in  condemnation  proceedings, 
48  note  1 1 ;  excess  and  zone  condemnation,  73  and  note  24 ;  re- 
plotting,  84  note  67.  See  also  EMINENT  DOMAIN;  EXCESS 
CONDEMNATION;  REPLOTTING;  SOUTH  AUSTRALIA; 
ZONE  CONDEMNATION. 

Austria,  expropriation,  57  note  20;  promotion  of  beauty.  400-402.  See 
also  EMINENT  DOMAIN;  BEAUTY,  PROMOTION  OF. 

Austro-Hungary,  replotting,  87.     See  also  REPLOTTING. 

Authorities,  Planning,  see  ADMINISTRATION. 

Authority,  zoning,  necessity  of  express  grant,  281 ;  appointment  of  plan- 
ning commissions,  special  law  or  general  powers,  554-5-  Sec  a^so 
PLANNING  COMMISSIONS.  7<>\ING. 

Automobile  Traffic,  importance  of  setbacks  at  corners  of  traffic  streets, 
181.  See  also  SETBACKS;  STREETS  AND  HIGHWAYS. 

Automobiles,  parking  regulations.  183;  traffic  streets,  183.  See  also 
GARAGES;  KISIDKNTIAL  USES  AND  DISTRICTS; 
STREETS  AND  HIGHWAYS. 

Avoidance  of  debt  limit,  3&z.     See  also  CITIES  AND  TOWNS. 

Back  Bay  Cases  (Boston),  supporting  theory  of  zone  condemnation,  140. 
See  also  ZONE  CONDEMNATION. 


INDEX  663 

Bad  Faith,  improvements,  no  compensation,  69.  See  also  EMINENT 
DOMAIN. 

Baden,  replotting,  87,  105  and  note  90;  planning  jurisdiction,  449; 
construction  of  planned  streets,  461 ;  restriction  on  building  freedom, 
461.  See  also  ADMINISTRATION;  REPLOTTING;  STREETS 
AND  HIGHWAYS;  ZONE  REGULATIONS. 

Baldwin,  Chief  Justice  (Conn.),  police  power,  18  note  4.  See  also 
POLICE  POWER. 

Baltimore,  height  limitations,  265  and  note  4,  393  note  20.  See  also 
HEIGHT  LIMITATIONS  AND  DISTRICTS. 

Bassett,  E.  M.,  building  in  bed  of  mapped  street,  proposed  amendment 
to  New  York  City  charter,  35  note  16;  principles  of  zoning,  204 
note  14;  function  and  importance  of  Boards  of  Appeals,  569-574. 
See  also  BOARDS  OF  APPEALS;  STREETS  AND  HIGH- 
WAYS; ZONING. 

Battlefields,  Quebec,  purchase  by  Canada,  382  note  3 ;  Gettysburg,  taking 
constitutional,  385.  See  also  BEAUTY,  PROMOTION  OF. 

Bavaria,  expropriation,  57  note  20.     See  also  EMINENT  DOMAIN. 

Beaches,  reservation  for  public  use,  171.  See  also  PARKS  AND  PARK- 
WAYS. 

BEAUTY,  PROMOTION  OF:  i.  In  General;  2.  Legislation; 
3.  Eminent  Domain;  ,4.  Police  Power;  5.  Restrictions  in 
Deeds;  6.  Art  Commissions;  7.  Works  of  Art;  8.  Building 
Designs;  9.  Heights  of  Buildings;  10.  Street  and  Building 
Lines;  n.  Artistic  Places  and  Structures;  12.  Historical  Places 
and  Structures. 

Cross-references:  ADMINISTRATION  (6);  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS  (3,  5)  ;  EMINENT 
DOMAIN  (2)  ;  ENGLAND  (2,  6)  ;  EXCESS  CONDEMNATION 
(6);  FRANCE  (4,  6);  GERMANY  (4);  LAND  (11)  ;  MASSA- 
CHUSETTS (i);  NEW  JERSEY  (i,  2);  NEW  YORK  (3); 
NEW  YORK  CITY  (14);  ORDINANCES  (i)  ;  OUTDOOR 
ADVERTISING  (5)  ;  PARKS  AND  PARKWAYS  (5)  ;  PLAN- 
NING COMMISSIONS  (i,  3)  ;  POLICE  POWER  (3)  ;  RECOM- 
MENDATIONS AND  SUGGESTED  REFORMS  (15,  16,  19); 
RESIDENTIAL  USES  AND  DISTRICTS  (i)  ;  SETBACKS 
(i);  STREETS  AND  HIGHWAYS  (8);  TAXATION  (i)  ; 
TRANSPORTATION  (2,  7);  UNITED  STATES  (2). 

1.  In  General:  function,  381. 

2.  Legislation:    Washington,   D.    C,   proposed    law,   387    note    13    (at 
p.  388)  ;  Europe,  396  and  note  23 ;  Denmark,  Italy,  Japan,  Portugal, 
Roumania,  .  Sweden  and  Switzerland,  396  note  24 ;   France^  "classifi- 
cation," 396-399,  422-423 ;  England,  included  under  word  "amenity,1 
399-400,    432-441,    502,    505;    Germany,    Switzerland    and    Austria, 
building    regulation,    400-402;    Germany,    1907    and    thereafter,    403- 

405. 

3.  Eminent  Domain:  taking  under,  133,  382-390;  excess  condemnation 
in  France,   Switzerland  and   Belgium,  382  note  3;  expropriation  in 
England,  382  note  3;  legality  of  taking,  390  note  15. 

4.  Police  Power:  regulation  under,  204  note   14   (4),  391-395;  consti- 
tutional amendments,  394-395  and  note  22;  regulations  give  no  right 
to    compensation    (England),   509. 

5.  Restrictions  in  Deeds:  beauty  as  basis  for,  supplementing  zoning 
regulations,  205  note  14  (11). 

6.  Art  Commissions:  powers,  duties,  problems  of  administration,  563; 
appointment,  power  limited,  qualifications,  civil  service,  564  note  41; 


664  INDEX 

power  to  give  advice  only,  or  to  control  city  action,  565 ;  New  York 
City  Art  Commission,  584-587 ;  statutes  tabulated,  638.  See  also 
infra  this  title,  BUILDING  DESIGNS. 

7.  Works   of  Art:  protection    (France),  396-399,  423-432;   protection 
(Hesse  and  Wiirttemberg),  308  note  27;  expropriation  (Germany), 
400  note  34;  acceptance  by  city   (N.  J.),  580;  acceptance  and  loca- 
tion subject  to  approval  of  Art  Commission  (New  York  City),  586; 
definition  (New  York  statute),  586;  within  control  of  planning  com- 
mission  (Cleveland,  O.)i  587. 

8.  Building  Designs:    German,  French  and  English  methods,  405-407; 
legislation  to  secure  architectural  harmony  in  localities    (England), 
439-440;    disfigurement,   prevention    of    (Prussia),   468;    residences, 
regulations     (Prussia),    473;    when    properly     within    commission's 
jurisdiction,   562;    power   of   art   commission,   565;   public   improve- 
ments, approval  of  planning  commission,  577 ;  public  buildings,  re- 
port by  commission  to  city  council   (N.  J.),  580;  public  buildings, 
approval   by  Art   Commission    (New   York  City),   586;   control  by 
planning  commission    (Cleveland,  O.),  587. 

9.  Height  of  Buildings:    Copley  Square,  Boston,  Massachusetts  deci- 
sion, 385-386. 

10.  Street  and   Building   Lines:   establishment,  aesthetic   requirements 
(Germany),  401. 

11.  Artistic  Places  and  Structures:  expropriation  of  scenic  land  (New 
Zealand),  382  note  3;  preservation  of  scenic  beauty  along  state  high- 
ways  (Ore.),  387  note  13  (at  p.  388)  ;  appropriation  of  water  fall 
for  artistic  purposes   (Col.),  390  note  15;  preservation   (Germany), 
403-405;    outdoor    advertising,    regulations    (England,    France    and 
Germany),  420-421;   protection    (France),   423-432;    plans   required 
(France),  515. 

12.  Historical    Places   and    Structures:    purchase    of    national   battle- 
fields  at  Quebec   by   Canada,  382  note  3 ;   taking  of   battlefield   at 
Gettysburg  by  United  States,  385;  preservation  (Germany),  403-405; 
plans  required   (France),  515. 

Belgium,  protection  of  private  property,  13  note  I ;  excess  condemnation, 
67  note  10,  79;  zone  condemnation,  79-80;  influence  of  English  hous- 
ing reforms,  80;  excess  condemnation  to  promote  beauty,  382  note 
3;  self-imposed  liability  for  damages  to  war  sufferers,  514  n>  • 
See  also  BEAUTY,  "PROMOTION  OF;  CONSTITUTIONAL 
AND  STATUTORY  PROVISIONS;  DEVASTATED  REGIONS: 
EXCESS  CONDEMNATION;  HOUSING;  ZONE  CONDEM- 
NATION. 

BENEFIT  ASSESSMENTS:  i.  In  General;  2.  Legislation;  3.  Pur- 
pose; 4.  Limitations;  5.  Payment;  6.  Avoidance  of  Debt  Limit. 
Cross-references:  CITIES  AND  TOWNS  (7);  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS  (5):  EV.LANM 
(ii):  EXCESS  CONDEMNATION  (i)  ;  FRANCE  (8);  GER- 
MANY (10) ;  LAND  (7) ;  NEW  YORK  (i)  ;  NEW  YORK  (MTV 
(3.  13);  PARKS  AND  PARKWAYS  (3);  PUBLIC  IMPROVE- 
MENTS (3);  RECOMMENDATIONS  AND  SUGGESTED 
FORMS  a  13,  U);  TRANSPORTATION  (4);  UNITED 
STATES  (6). 

i.  In  General:  use  in  United  States  and  abroad,  358;  history,  363-364. 

a.  Legislation:    Prussia,  455,  471-472;  Saxony,  489-490;  England,  505. 
Canada,   511. 

3.  Purpose:  to  pay  cost  of  public  improvements,  138,  371  and  note  18; 
for   construction   of    parks,   369-37' ',   construction   or  extension   of 


INDEX  665 

public  utilities,  372  note  20;  construction  of  transit  lines,  372  and 
notes  20-22. 

4.  Limitations:  amount,  364;  area  of  assessment,  367-369. 

5.  Payment:  time  of,  in  United  States  and  Germany,  365-366;  instal- 
ment plan,  365. 

6.  Avoidance  of   Debt   Limit:  by  paying   for  improvements   out  of 
assessments,  362. 

Benefits,   from  improvements  to  part  of  land  not  taken,  deduction,  48. 

See  also  BENEFIT  ASSESSMENTS;  EMINENT  DOMAIN. 
Berlin,   zoning   ordinances,   216  and   note    12.      See   also    CITIES    AND 

TOWNS;  ZONE  REGULATIONS. 
Betterments,  see  BENEFIT  ASSESSMENTS. 
Bill  Boards,  see  OUTDOOR  ADVERTISING. 
Bill  of  Rights,  state  and  federal  constitutions,  effect  of  duplications  on 

acquisition  of  land  by  city,  45.    See  also  CONSTITUTIONAL  AND 

STATUTORY   PROVISIONS. 
Birmingham  (England)  scheme,  houses  to  acre,  503  note  13.     See  also 

EAST  BIRMINGHAM. 

Blocks  of  Houses,  see  RESIDENTIAL  USES  AND  DISTRICTS. 
Board  of  Estimate,  see  NEW  YORK  CITY. 

Board,  Zoning,  definition,   204  note   14.     See  also  PLANNING  COM- 
MISSIONS. 
BOARDS   OF  APPEALS:     i.  In  General;  2.  Statutory  Authority; 

3. .Powers;  4.  Decisions. 

Cross-references:       ADMINISTRATION      (4);     ORDINANCES 

(i);    PLAN    (7);   RECOMMENDATIONS   AND   SUGGESTED 

REFORMS  (20);  ZONE  REGULATIONS  (2). 

1.  In  General:  function  in  enforcement  of  city  plan,  37-39,  569. 

2.  Statutory  Authority:  necessity,  573. 

3.  Powers:   allowance   of   exceptions   to  zoning   regulations,   205   note 
J4  (J3)  J  under  zoning  regulations,  generally,  206  note  14  (18)  ;  dis- 
cretionary power  in  matter  of  garages  and  stables  (New  York  City), 
270;    under   New   York   law    for   zoning   of    cities,    295-298;    under 
zoning  law  for  New  York  City,  295 ;  modification  of  regulations  in 
case  of  hardship  (New  York  City),  320;  extent  and  limitations,  569- 
575 ;  conditional  allowance  of  exceptions,  572  note  52. 

4.  Decisions:  presumption  on  appeal  in  favor  of  correctness,  575. 
Bombay,  planning  law  in  part  modeled  on  English  act,  510  note  27;  in- 
fluence of  English  act,  see  ENGLAND. 

Bonds,  Municipal,  financing  excess  condemnation,  132.  See  also  CITIES 
AND  TOWNS;  EXCESS  CONDEMNATION. 

Border  Line  Cases,  exceptions  to  zoning  regulations,  function  of  Board 
of  Appeals,  569.  See  also  BOARDS  OF  APPEALS;  ZONE 
REGULATIONS. 

Borrowing,  Municipal,  see  CITIES  AND  TOWNS. 

Boston,  Back  Bay  Cases,  140;  height  districts,  266  and  note  6;  height 
limitations,  Copley  Square,  385-387;  height  limitations,  State  House, 
387  note  13 ;  height  limitations,  Custom  House,  536.  See  also 
HEIGHT  LIMITATIONS  AND  DISTRICTS;  ZONE  CONDEM- 
NATION. 

Boulevards,  water  front,  171 ;  lay  out,  legality,  383 ;  outdoor  advertising 
(England),  421.  See  also  CONSTITUTIONAL  AND  STATU- 
TORY PROVISIONS;  HARBORS  AND  WATER  FRONT; 
OUTDOOR  ADVERTISING;  PARKS  AND  PARKWAYS. 

Boundaries,  adjustment,  East  Birmingham  (England)  scheme,  508  note 
20.  See  also  LAND. 


666  INDEX 

Boxes,  unloading  on  streets,  175.  See  also  STREETS  AND  HIGH- 
WAYS. 

Bridgeport  (Conn.),  appointment  of  planning  commission  under  City's 
general  powers,  555  note  21.  See  also  CITIES  AND  TOWNS; 
PLANNING  COMMISSIONS. 

Bridges,  interstate  or  international  planning,  9;  over  navigable  waters, 
171;  over  streets,  175;  commission's  jurisdiction  generally,  561-2; 
commission's  jurisdiction  (New  York),  583;  commission's  juris- 
diction (Cleveland.  Ohio),  587.  See  also  NAVIGABLE  WATERS; 
PLANNING;  PLANNING  COMMISSIONS;  STREETS  AND 
HIGHWAYS. 

British  Empire,  see  specific  headings,  ENGLAND,  CANADA,  etc. 

Bronx  River  Parkway,  establishment,  383  note  7.  See  also  PARKS 
AND  PARKWAYS. 

Bronx  River  Parkway  Commission,  report,  small  streams  menace  to 
public  health,  3«3  note  7.  See  also  PLANNING  COMMIS- 
SIONS. 

Brookline  (Mass.),  financial  results  to  town  of  setbacks,  182.  See  also 
SETBACKS. 

Brooklyn  (N.  Y.),  height  limitations,  275.  See  also  HEIGHT  LIMI- 
TATIONS AND  DISTRICTS. 

Brotterode  (Germany),  replotting  after  fire,  86.  See  also  REPLOT- 
TING. 

Building  Codes,  relation  to  city  planning,  5.  See  also  BUILDING 
REGULATIONS;  PLANNING. 

Building  Designs,  preservation  of  character  of  special  localities,  German, 
French  and  English  methods,  405-407.  See  also  BEAUTY,  PRO- 
MOTION OF. 

Building  Development,  borrowing  by  city,  debt  limit,  361 ;   restrictions 

(Prussia),  455-457;  Saxon  planning  law,  457;  restrictions  (Germany), 

460-461;   restrictions    (Sweden),  462;   plan   requirements    (France), 

515,  517.    See  also  CITIES  AND  TOWNS;  PLAN;  PLANNING. 

Building  Land,  see  LAND. 

Building  Law  (Zurich,  1893),  replotting,  86;  distinguished  from  zoning 
law,  205  note  14  (12);  Saxony  (1000),  474-495.  See  also  PLAN- 
NING; REPLOTTING;  ZONING. 

Building  Lines,  see  SETBACKS. 

Building  Permits,  Milwaukee,  338;  Alameda  (Cal.),  353;  aesthetic  re- 
quirements (Germany),  402;  requirement  after  adoption  of  pl.t- 
(Prussia),  453;  undeveloped  areas  (Prussia),  455-457;  unpl;um<<i 
areas  (Sweden),  462;  requirements  (France),  534.  See  aK<> 
BEAUTY,  PROMOTION  OF;  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  LAND;  PLAN. 

Building  Plans,  revision  by  Bureaus  of  Building  Advice  (Germany),  406 
and  note  54.  See  also  ZONE  REGULATION'S 

Building  Police,  Germany,  406,  451.    See  also  GERMANY. 

Building  Regulations,  general  discussion,  5 ;  check  to  congested  areas, 
12;  method  of  enforcing  city  plan,  29;  definition,  191;  retroactive. 
101 ;  "graduated"  (Germany),  212,  216;  architecture  (Quebec),  .vi- 
note  16;  promotion  of  beauty  (Germany,  Switzerland  and  An 
400-402;  Prussia,  452;  Saxony,  477.  400-405;  England.  503-504.  See 
also  AREA  LIMITAT!  D  DISTRICTS:  HKAl'TY,  PRO 

MOTION'  OF;  r.ril.niNV,  CODES;  CoNSTITfTIoXAI. 
STATTTORY   PROVISK'  \:   X«)\R  REGULATIONS. 

Building  Zone  Resolution    (New   York  City),  305-323.     See  also 
TRICTS;  ZONINC 


INDEX  667 

Buildings,  height  limitations  around  public  building  or  square,  15;  height 
area  and  use,  part  of  city  plan,  27;  number  of  stories,  restriction 
(Germany),  224;  subsidiary  in  rear  (Frankfort),  229  (sec.  8); 
completion  and  restoration  (New  York  City),  322-323;  regulation 
about  municipal  centers  (Saskatchewan),  392  note  16;  definition 
(Saxony),  474;  reconstruction  after  catastrophe  (Saxony),  475; 
character  (Saxony),  476;  construction  after  adoption  of  plan, 
compensation  (Saxony),  480;  number  to  acre  (England),  503-504; 
commission's  powers,  561-2.  See  also  EMINENT  DOMAIN; 
ENCROACHMENTS;  HEIGHT  LIMITATIONS  AND  DIS- 
TRICTS; NONCONFORMING  BULKS;  NONCONFORMING 
STRUCTURES;  NONCONFORMING  USES;  PLANNING 
COMMISSIONS;  PUBLIC  BUILDINGS;  TALL  BUILDINGS; 
REPLOTTING;  USE  LIMITATIONS  AND  DISTRICTS; 
ZONE  REGULATIONS. 

BULK  ZONING  AND  REGULATIONS:  i.  In  General;  2.  His- 
tory and  Development;  3.  Application  to  City;  4.  Legality; 
5.  Effect. 

Cross-references:  BEAUTY,  PROMOTION  OF  (9);  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS  (5)  ;  ENG- 
LAND (5)  ;  GERMANY  (5)  ;  HEIGHT  LIMITATIONS  AND 
DISTRICTS  (2,  3);  LAND  (n)  ;  MASSACHUSETTS  (5); 
NEW  YORK  CITY  (6,  9);  ORDINANCES  (i)  ;  RECOM- 
MENDATIONS AND  SUGGESTED  REFORMS  (8)  ; 
RESIDENTIAL  USES  AND  DISTRICTS  (2)  ;  SET- 
BACKS (i). 

1.  In  General:  definition,  purpose  and  relation  to  the  city  plan,  193, 
197 ;  necessity  for,  198. 

2.  History    and    Development:     Germany,    211-213;    from    large    to 
smaller  districts    (Germany),  216;   England,  218  and  note  16;  New 
York  City,  268,  275-276. 

3.  Application    to    City:    different    for    different    parts    of    city,    198; 
according  to  types  of  houses  (Germany),  217  note  14. 

4.  Legality:    sustained    by    courts    (Germany),    216;    constitutionality 
(United  States),  287. 

5.  Effect:  relation  to  fire  hazard,  anaemia,  disease,  accident  and  juvenile 
delinquency,  195 ;  land  values,  195,  209. 

Bulkhead  Lines,  see  HARBORS  AND  WATER  TFRONT. 

Bulkheads,  elevator  (New  York  City),  270.  See  also  ZONE  REGULA- 
TIONS. 

Burden  of  Proof,  on  one  denying  constitutionality  of  statute,  21-22.  See 
also  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS. 

Bureau  of  Building  Advice,  revision  of  building  plans  (Germany),  406 
and  note  54.  See  also  STATES. 

Bureau  of  Municipalities,  information  and  advice  (Penn.),  604-5.  See 
also  STATES. 

Business,  transacting  on  streets,  whether  a  legal  street  use,  176;  exclusion 
from  residence  districts.  268,  288;  segregation  (Cal.  and  Ore.),  566 
note  43.  See  also  RESIDENTIAL  USES  AND  DISTRICTS; 
f  STREETS  AND  HIGHWAYS. 

Business  Streets,  suburban,  setbacks,  179;  central,  setbacks,  181.  See 
m  also  SETBACKS;  STREETS  AND  HIGHWAYS. 

Business  Structures,  exclusion  about  parks  (St.  Louis),  387  note  13  (at 
p.  388)  ;  classification  under  zoning  regulations,  outdoor  advertising, 
418.  See  also  OUTDOOR  ADVERTISING;  PARKS  AND 
PARKWAYS:  ZONE  REGULATIONS. 


668  INDEX 

BUSINESS   USES  AND   DISTRICTS:     i.  In  General;  2.  Legisla- 
tion; 3.  Uses  Permitted  and  Excluded;  4.  Legality. 
Cross-references:    PARKS  AND   PARKWAYS    (5);  RESIDEN- 
TIAL USES  AND  DISTRICTS  (9,  12)  ;  SETBACKS   (4)  ;  USE 
LIMITATIONS  AND  DISTRICTS  (3). 

1.  In  General:  zoning  regulations  in  general,  203,  205  note  14  (13). 

2.  Legislation:  Frankfort,  215;  New  York  City,  268,  307-309;  Alameda 
(Cal.),  341-344- 

3.  Uses  Permitted  and  Excluded:    New  York  City,  268-269;  garages 
(Xew   York  City),  269-270  and  note   13;   Milwaukee,  326. 

4.  Legality:  judicial  decisions,  286;  exclusion  of  manufacturing,  287 
and  note  36. 

California,  state  planning  of  capital  city,  544  and  note  10;  expert  assist- 
ance to  local  communities,  553  note  18;  commissions  with  advisory 
powers  only,  558  note  26;  segregation  of  business,  trade,  or  callings, 
566  note  43;  Capital  City  Planning  Law,  603-4.  See  also  BUSI- 
NESS USES  AND  DISTRICTS;  PLANNING;  PLANNING 
COMMISSIONS;  STATES;  ZONE  REGULATIONS. 

Callings,  segregation  (Cal.  and  Ore.),  566  note  43.  See  also  BUSINESS 
USES  AND  DISTRICTS. 

Canada,  city  plan,  enforcement,  30;  city  development,  control,  41;  debit- 
ing value  of  improvement,  condemnation  proceedings,  48  note  n; 
excess  condemnation,  statutes,  67  note  10;  excess  and  zone  con- 
demnation, 73  and  note  24 ;  replotting,  statutes,  84  note  67 ;  zoning, 
211,  265;  self-supporting  municipal  enterprises,  debt  limit,  361  note 
3;  benefit  assessments,  364;  benefit  assessments,  public  utilities,  372 
note  20 ;  battlefields  at  Quebec,  purchase,  382  note  3 ;  shade  tree 
planting,  legality,  383  note  6;  promotion  of  beauty  under  police 
power,  legality,  392  note  16;  proposed  planning  law,  510-513;  investi- 
gation and  advice,  542;  supervision  of  local  planning,  551.  See  also 
BEAUTY,  PROMOTION  OF;  BENEFIT  ASSESSMENTS; 
CITIES  AND  TOWNS;  CONSTITUTIONAL  AND  STATU- 
TORY PROVISIONS;  EMINENT  DOMAIN;  EXCESS  CON- 
DEMNATION; PLAN;  POLICE  POWER;  REPLOTTING; 
STATE;  ZONE  CONDEMNATION;  ZONING. 

Canals,  condemnation  of  land  (Prussia),  61  note  i.  See  also  EMINENT 
DOMAIN. 

Cancellation,  of  subdivision,  see  SUBDIVISIONS. 

Capital,  railroad,  reasonable  return,  164;  tax,  effect  on  land  development, 
366.  See  also  LAND;  TAXATION;  TRANSPORTATION. 

Capital  City  Planning  Act,  California,  603-4.    See  also  PLANNING. 

Cases,  see  DECISIONS. 

Catastrophes,  replotting,  86;  plan  for  reconstruction  (Prussia),  453; 
plan  for  reconstruction  (Saxony),  475;  plan  for  reconstruction 
(France),  515,  530.  See  also  PLAN;  REPLOTTING. 

Censorship,  artistic,  dangers  avoided  (Germany),  406.  See  also 
i  TV.  PROMOTION  OF. 

Central  Business  Streets,  setbacks,  181.  See  also  SETBACKS; 
STREETS  AND  HIGHWAYS. 

Central  Park,  establishment,  &s.  See  also  BEAUTY,  PROMOTION 
"I-;  PARKS  AND  PARKWAYS. 

Certificate  of  Occupancy,  New  York  City.  321;  Milwaukee,  338-  Ala- 
.tl.),  352.  See  also  USE  LIMITATIONS  AND  DIS- 
TRICTS. 


INDEX  669 

Certiorari,  review  of  proceedings  on  appeal  (New  York).  297.  See  also 
APPKALS 

Changes,  charter,  see  PUBLIC  UTILITIES;  district,  see  DISTRICTS; 
nonconforming  use,  see  NONCONFORMING  USES;  zoning  regu- 
lations, see  ZONE  REGULATIONS. 

Character  of  Neighborhood,  effect  of  use  zoning,  200;  zoning  in  built- 
up  districts,  202;  preservation  (Germany),  405.  See  also  DIS- 
TRICTS; USE  ZONING;  ZONING. 

Charter  of  New  York  City,  proposed  amendment,  building  in  bed  of 
mapped  street,  35  note  16;  powers  to  create  single  family  house 
districts,  275  note  21.  See  also  CITIES  AND  TOWNS;  NEW 
YORK  CITY;  RESIDENTIAL  USES  AND  DISTRICTS; 
STREETS  AND  HIGHWAYS. 

Charter  of  Public  Utility,  amendment  as  method  of  control,  162,  163; 
rights  generally,  163;  grant  to  competing  utility,  166;  expiration, 
competing  utilities,  168.  See  also  PUBLIC  UTILITIES. 

Chesterfield  (England),  scheme,  houses  to  acre,  503  note  15.  See  also 
AREA  LIMITATIONS  AND  DISTRICTS. 

Chesterton,  G.  K.,  lights  on  Broadway,  408  note  60.  See  also  BEAUTY, 
PROMOTION  OF;  OUTDOOR  ADVERTISING. 

Chicago,  tenement  houses,  fire  regulations,  192;  congestion  in  the  Loop, 
lack  of  regulation,  194.  See  also  RESIDENTIAL  USES  AND 
DISTRICTS;  ZONE  REGULATIONS. 

Chimneys,  zoning  regulations  (New'  York  City),  270.  See  also  ZONE 
REGULATIONS. 

Chinese   Quarters,  see   RACIAL  ZONING.     See  also  ZONING. 

CITIES  AND  TOWNS:  i.  Planning  Authority  in  General;  2.  Par- 
ticular Powers;  3.  City  Council;  4.  City  Officials;  5.  Control 
over  Development;  6.  Municipal  Borrowing;  7.  Avoidance  of 
Debt  Limit;  8.  Particular  Cities  and  Towns. 
Cross-references:  ADMINISTRATION  (3);  BEAUTY,  PRO- 
MOTION OF  (6,  7,  8)  ;  BENEFIT  ASSESSMENTS  (6)  ;  BULK 
ZONING  (3)  ;  CONSTITUTIONAL  AND  STATUTORY  PRO- 
VISIONS (4,  5)  ;  EMINENT  DOMAIN  (i,  6) ;  ENGLAND 
(3)  ;  EXCESS  CONDEMNATION  (6,  7,  9) ;  FRANCE  (2)  ; 
GERMANY  (5,  8,  9)  ;  HARBORS  AND  WATER  FRONT  (2)  ; 
LAND  (i,  3,8,  10)  ;  LANDOWNERS  (2,  3)  ;  MASSACHUSETTS 
(2);  NEW  JERSEY  (i)  ;  NEW  YORK  CITY  (3,  5)  ;  ORDI- 
NANCES (i,  2);  PLAN  (2,  3,  5);  PLANNING  (2,  3,  6,  8,  10, 
ii,  13)  ;  PLANNING  COMMISSIONS  (2,  3)  ;  PUBLIC  IM- 
PROVEMENTS (3)  ;  PUBLIC  UTILITIES  (i,  2);  RECOM- 
MENDATIONS AND  SUGGESTED  REFORMS  (13,  14,  18,  19); 
RESIDENTIAL  USES  AND  DISTRICTS  (i,  3,  4,  12);  SET- 
BACKS (i);  STATES  (2,  3,  4);  STREETS  AND  HIGHWAYS 
(9) ;  TAXATION  (i,  3)  ;  TRANSPORTATION  (i,  3,  4,  5,  7,  8) ; 
UNITED  STATES  (i)  ;  UNITED  STATES  GOVERNMENT 
(i);  USE  LIMITATIONS  AND  DISTRICTS  (i)  ;  ZONE 
REGULATIONS  (i,  3);  ZONING  (i). 

i.  Planning  Authority  in  General:  power  to  make  zoning  regulations, 
grant  by  state,  205  note  14  (5)  ;  power  to  zone,  necessity  of  specific 
authorization,  281;  local  self-government  (Germany),  448-451;  local 
self-government  (Saxony),  457-459,  475;  local  self-government 
(England),  501;  local  self-government  (Canada),  511;  formulation 
of  plan  mandatory  (France),  515;  local  self-government,  grant  by 
United  States  outside  state  limits,  535;  grant  by  state,  543;  detailed 
planning,  proper  city  function,  544-545. 


670  INDEX 

2.  Particular  Powers:  excess  condemnation,  130-131;  control  of  trans- 
portation company's  rates  and   facilities,   164-166;  control  of  trans- 
portation company's   routes  and  location,   164;   acceptance  of  gifts, 

56.5. 

3.  City   Council:  division  of  power  and   responsibility   with  planning 
commission,  559;   power  to  over-ride  recommendations  of   planning 
commission,    559;    action   controlled    by    planning    commission,    559- 
560;  power  to  act  on  city  plan  reported  by  commission,  567. 

4.  City  Officials:  as  members  of  planning  commissions,  557. 

5.  Control  over  Development:  method  followed  in  Germany,  39-40; 
laissez  faire  method  in  United  States,  40;  method  followed  in  Can- 
ada, 41;   land  requirements,  43;  excess  condemnation,   139;   relation 
to  possible  regional  planning  by  United  States,  541 ;  extension  into 
undeveloped  areas,  546;   extension   of    planning  jurisdiction   beyond 
city  limits,  usual  method  criticised,  546. 

6.  Municipal  Borrowing:  necessity,  purpose,  sinking  fund  provisions, 
359-36o;   method  in   United  States  to  control  excessive  borrowing, 
360-361. 

7.  Avoidance  of  Debt  Limit:  excess  condemnation,  132;  self-support- 
ing municipal  enterprises,  361   and   note  3;   borrowing  for  building 
development,  361 ;   payment  for  improvements  out  of   income,  30.2 ; 
benefit  assessments,  362. 

8.  Particular  Cities  and  Towns:   See  the  following  specific  headings: 
Alameda    (Cal.)  ;   Alberta;   Altona    (Germany);    Baltimore;    Merlin 
(Germany);     Bombay;     Boston      (Mass.);     Bridgeport     (Conn.); 
Brookline    (Mass.)  ;    Brooklyn    (N.    Y.)  ;    Brotterode    (Germany) ; 
Chicago;   Cleveland   (Ohio)  ;   Cologne    (Germany)  ;   Dresden    (Ger- 
many) ;    Diisseldorf     (Germany)  ;    East    Birmingham     (England)  ; 
East  Cleveland    (Ohio)  ;   Edmonton   (Canada)  ;   Elizabeth    (N.  J.)  ; 
Frankfort-on-the-Main  (Germany)  ;  Halifax  (Nova  Scotia)  ;  Ham- 
burg    (Germany)  ;     Hampstead     (England)  ;     Hartford     (Conn.)  ; 
Hildesheim    (Germany);    Indianapolis;    Jerusalem;     Kansas    City; 
Karlsruhe  (Germany)  ;  Los  Angeles  (Cal.)  ;   Madras  (India)  ;  Mil- 
waukee (Wise,)  ;  Minneapolis  (Minn.)  ;  Munich  (Germany)  ;  Newark 

(N.  J.)  ;  Paris;  Philadelphia;  Providence  (R.  I.);  Quebec;  Ruislip 
Nortnwood  (England);  St.  John  (N.  B.) ;  St.  Louis;  Saloniki 
(Greece) ;  Schenectady  (N.  Y.)  ;  Stuttgart  (Germany)  ;  Szegadin 
(Hungary);  Toronto  (Canada);  Vienna;  Washington  (D.  C.) ; 
White  Plains  (N.  Y.)  ;  Windsor  (Conn.);  Worcester  (Mass.); 
Wiirttemberg  (Germany) ;  Zurich  (Switzerland). 

Citizens,  see  LANDOWNERS. 

City  and  Village  Planning  Law,  New  York,  581-4.  See  also  CON- 
S  I  ITUTIONAL  AND  STATUTORY  PROVISIONS. 

City  Attorney,  membership  on  planning  commission,  557.  See  also 
PLANNING  COMMISSIONS. 

City  Club  of  New  York,  pamphlet  "Protecting  the  Future  of  New  York," 
275  note  22;  advocacy  of  semi-residential  use  district  (New  York), 
278  note  28;  suggestions  for  port  zoning  (New  York),  2"K  note  jS; 
report  on  increase  in  land  values  from  subway  construction  (  New 
York),  372  and  note  22.  See  also  CITIES  AND  To\YNS;  HAR- 
BORS AND  WATER  FR(  >  \l>:  RESIDENTIAL  USES 
!> TRICTS;  TR.\NS1'«  iRTATION. 

City   Council,   see   ( 'IT  IKS   AND   TOWNS. 

City  Development,  see  (ITU'S  AND  TOWNS. 

City  Limits,  see  (!  M>  TOWNS. 

City  Officials,  see  CIT.  i)  TOWNS. 


INDEX  671 

City  Plan,  see  PLAN. 

City  Planning,  see  PLANNING. 

City  Planning  Institute,  see  AMERICAN  CITY  PLANNING  INSTI- 
TUTE. 

Civic  Beauty,  see  BEAUTY,  PROMOTION  OF. 

Civil  Service,  art  commissions,  565  note  41.  See  also  BEAUTY,  PRO- 
MOTION OF. 

Classes,  division  of  city  (Diisseldorf),  255.    See  also  ZONING. 

"Classification"  of  historic  and  artistic  objects  and  places  (France),  396- 
399,  423,  424-431.  See  also  BEAUTY,  PROMOTION  OF. 

Classification  (District),  elaborate  on  Pacific  coast,  291 ;  change  in 
(Alameda,  Cal.),  343,  353-354-  See  also  DISTRICTS;  RECLASSI- 
FICATION. 

Classification  of  Land,  residential  and  agricultural  (Canada),  41;  rural, 
suburban  and  urban  (Philadelphia),  42  note  21.  See  also  LAND. 

Classification  Yards,  proposed  port  zoning  (New  York),  278  note  28. 
See  also  HARBORS  AND  WATER  FRONT. 

Cleveland  (Ohio),  setbacks,  280  note  31 ;  exclusion  of  tenement  houses 
from  one  and  two  family  residence  districts,  288;  Board  of  Appeals, 
hardship  cases,  572  note  52 ;  charter  and  ordinance,  planning  provi- 
sions, 587.  See  also  BOARDS  OF  APPEALS;  CITIES  AND 
TOWNS;  CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS; RESIDENTIAL  USES  AND  DISTRICTS;  SETBACKS. 

Clinton  Avenue  Case  (N.  Y.),  park  strips  along  highways,  legality,  390 
note  15.  See  also  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS;  DECISIONS.  See  also  PARKS  AND  PARK- 
WAYS. 

Club  Houses,  location  (Cal.  and  Ore.),  566  note  43.  See  also  RESI- 
DENTIAL USES  AND  DISTRICTS. 

Codes,  Building,  relation  to  city  planning,  5.  See  also  BUILDING 
REGULATIONS;  PLANNING. 

Cologne,  zoning  provisions,  262  (No.  2).  See  also  CITIES  AND 
TOWNS;  ZONE  REGULATIONS. 

Colorado,  appropriation  of  waterfall  for  artistic  purposes,  390  note  15. 
See  also  BEAUTY,  PROMOTION  OF;  EMINENT  DOMAIN. 

Combination,  of  art  and  planning  commissions,  565.  See  also  BEAUTY, 
PROMOTION  OF;  PLANNING  COMMISSIONS;  RECOM- 
MENDATIONS AND  SUGGESTED  REFORMS. 

Commerce,  Foreign,  federal  control  basis  of  U.  S.  planning  power,  536- 
541.  See  also  UNITED  STATES  GOVERNMENT. 

Commerce,  Interstate,  see  UNITED   STATES  GOVERNMENT. 

Commercial  Districts,  uses  prohibited  (Milwaukee),  327.  See  also 
BUSINESS  USES  AND  DISTRICTS;  DISTRICTS;  USES. 

Commissioners  from  Sweden,  to  Interallied  Conference,  report  on  plan- 
ning and  housing  in  Sweden,  463  note  29.  See  also  HOUSING; 
PLANNING. 

Commission,  condemnation  proceedings,  criticism,  53-54-  See  also  EMI- 
NENT DOMAIN;  RECOMMENDATIONS  AND  SUGGESTED 
REFORMS. 

Commissions,  art,  see  BEAUTY,  PROMOTION  OF;  homestead,  expert 
assistance  to  local  communities,  553  note  18;  planning,  see  PLAN- 
NING COMMISSIONS. 

Committee  on  City  Plan  (New  York  City),  setbacks  in  business  and 
traffic  streets,  180.  See  also  SETBACKS;  STREETS  AND 
HIGHWAYS. 

"Common  Courts,"  definition,  Diisseldorf  ordinance,  252. 


672  INDEX 

"Common  Side  Setback  Spaces,"  definition,  Diisseldorf  ordinance,  252. 
See  also  SETBACKS. 

Commons,  confirmation  of  use  by  Parliament  (England),  526-527.  See 
also  LAND;  USES. 

Communes,  street  plans  (Italy),  445;  planning  jurisdiction  (Germany), 
448-451;  expropriation  (Prussia),  455;  department  of  Seine,  formu- 
lation of  plans  (France),  515.  See  also  ADMINISTRATION; 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS; 
EMINENT  DOMAIN;  PLAN;  STREETS  AND  HIGHWAYS. 

Commutation,  rates,  165.     See  also  TRANSPORTATION. 

Compensation,  condemnation  of  slum  areas  (England),  74,  75;  replotting 
under  Lex  Adickes  (Frankfort),  in,  112;  franchises  of  transpor- 
tation companies,  168;  service  on  planning  commission  (Minne- 
apolis), 577;  eminent  domain,  see  EMINENT  DOMAIN.  See  also 
PLANNING  COMMISSIONS;  PUBLIC  UTILITIES;  RECOM- 
MENDATIONS AND  SUGGESTED  REFORMS;  REPLOT- 
TING; TRANSPORTATION;  ZONE  CONDEMNATION. 

Competing  Utilities,  expiration  of  franchises  at  same  time,  168.  See  also 
I'lT.LIC  UTILITIES;  RECOMMENDATIONS  AND  SUG- 
GESTED REFORMS. 

Competition,  threat  as  method  of  control  of  public  utilities,  162;  public 
utilities,  wasteful,  166.  See  also  PUBLIC  UTILITIES;  RECOM- 
MENDATIONS AND  SUGGESTED  REFORMS. 

Completion  of  Existing  Buildings,  New  York  City  zoning  resolution, 
322-323.  See  also  NEW  YORK  CITY;  ZONE  REGULATIONS. 

Compulsory  Joint  Improvements,  police  power,  analogous  to  replotting, 
143,  144,  146.  See  also  REPLOTTING. 

Compulsory  Replotting,  police  power,  63,  64;  Lex  Adickes,  107.  See 
also  LEX  ADICKES;  POLICE  POWER;  REPLOTTING. 

Concessions,  demand  from  public  utility  as  method  of  control,  162-163. 
See  also  PUBLIC  UTILITIES. 

Condemnation,  generally,  see  EMINENT  DOMAIN;  excess,  see  EX- 
CESS CONDEMNATION;  zone,  see  ZONE  CONDEMNATION. 

Conditions,  local,  as  affecting  police  power  and  power  of  eminent  domain, 
20;  allowing  exceptions,  power  of  Board  of  Appeals  to  impose, 
572  note  52.  See  also  BOARDS  OF  APPEALS;  EMINENT  DO- 
MAIN; POLICE  POWER;  ZONE  REGULATIONS. 

Conduits,  grant  of  powers  to  commission,  561-2.  See  also  PLANNING 
COMMISSIONS. 

Conflict,  local  plans  and  plans  of  proposed  Metropolitan  Planning  Board, 
(Mass.),  591.  See  also  PLAN. 

Conformity,  to  city  plan,  enforcement,  28.     See  also  PLAN. 

Congested  Areas,  building  regulations  as  remedy,  12.  See  also  ZONE 
REGULATIONS. 

Congested  Quarters,  reason  for  zoning  regulations,  204  note  14  (4).  Sec 
also  ZONE  REGULATIONS. 

Connecticut,  protection  of  mapped  streets,  purchase  of  options  in  land, 
31  note  8;  protection  of  city  plan,  permit  required,  36  note  17; 
excess  condemnation,  130  note  15 ;  height  of  buildings  about  State 
Capitol,  387  note  13;  taxation  of  outdoor  advertising,  411  note  63; 
planning  and  park  boards,  consolidation.  562  note  35.  See  also 
EXCESS  CONDEMNATION;  HEIGHT  LIMITATIONS  AND 
DISTRICTS;  LAND;  OUTDOOR  ADVERTISING;  PLAN; 
PLANNING  COMMISSIONS;  RECOMMENDATIONS  AND 
SUGGESTED  REFORMS;  STREETS  AND  HIGHWAYS; 
TAXATION. 


INDEX  673 

Consent  of  Art  Commissions,  necessary  to  city  action,  565.  See  also 
BEAUTY,  PROMOTION  OF. 

Consent  of  City,  location  of  public  utilities,  29;  location  of  improve- 
ments in  mapped  streets,  34.  See  also  PUBLIC  UTILITIES; 
STREETS  AND  HIGHWAYS. 

Consent  of  Landowners,  acquisition  of  land  by  city,  57  note  20;  use 
zoning,  266  and  note  8.  See  also  CITIES  AND  TOWNS;  EMI- 
NENT DOMAIN;  LAND;  USE  ZONING. 

Conservation  of  Resources,  function  of  state  planning,  8.  See  also 
PLANNING. 

Consolidation,  planning  and  park  boards,  562.  See  also  PARKS  AND 
PARKWAYS;  PLANNING  COMMISSIONS;  RECOMMENDA- 
TIONS AND  SUGGESTED  REFORMS. 

CONSTITUTIONAL  AND  STATUTORY  PROVISIONS:  i.  In 
General;  2.  Constitutional  Guaranties;  3.  Constitutional 
Amendments;  4.  General  Planning  Laws;  5.  Laws  on  Specific 
Subjects;  6.  Mandatory  Statutes;  7.  Permissive  Statutes; 
8.  Constitutionality  of  Statutes  in  General;  9.  Constitutionality 
of  Particular  Statutes. 

Cross-references :  ADMINISTRATION  (3)  ;  AREA  LIMITA- 
TIONS AND  DISTRICTS  (2);  BEAUTY,  PROMOTION  OF 
(2,  4,  6)  ;  BENEFIT  ASSESSMENTS  (2)  ;  BOARDS  OF  AP- 
PEALS (2);  BULK  ZONING  (4);  BUSINESS  USES  AND 
DISTRICTS  (2);  CITIES  AND  TOWNS  (i)  ;  EMINENT  DO- 
MAIN (7) ;  ENGLAND  (2,  8,  10) ;  EXCESS  CONDEMNATION 
(3,  4,  5,  6)  ;  FRANCE  (i,  2)  ;  GERMANY  (2,  4,  9)  ;  LAND  (8, 
10)  ;  MASSACHUSETTS  (i,  2,  8)  ;  NEW  JERSEY  (i,  3)  ;  NEW 
YORK  (i,  2,  4)  ;  NEW  YORK  CITY  (2,  7,  8,  14)  ;  ORDINANCES 
(i);  OUTDOOR  ADVERTISING  (2,  3,  5);  PARKS  AND 
PARKWAYS  (10)  ;  PLAN  (2,  3,  7)  ;  PLANNING  (2,  3,  4,  7,  11)  ; 
PLANNING  COMMISSIONS  (i,  4);  POLICE  POWER  (i,  3, 
5);  RECOMMENDATIONS  AND  SUGGESTED  REFORMS 
(3,  7,  12,  14,  20)  ;  REPLOTTING  (2)  ;  RESIDENTIAL  USES 
AND  DISTRICTS  (3,  9,  10,  11)  ;  SETBACKS  (2,  3);  STATES 
(i,  2);  STREETS  AND  HIGHWAYS  (i,  7);  TAXATION  (4, 
9);  TRANSPORTATION  (i)  ;  UNITED  STATES  (4,  5); 
UNITED  STATES  GOVERNMENT  (i,  3,  4);  USE  LIMITA- 
TIONS AND  DISTRICTS  (3);  ZONE  CONDEMNATION 
(2);  ZONE  REGULATIONS  (2);  ZONING  (2). 

1.  In  General:  constitutional  limitations  on  planning  power  in  United 
States,  535. 

2.  Constitutional  Guaranties:  private  property  rights,  13-14,  45;  pro- 
visions protecting  property  rights,  duplication  in  federal  and  state 
constitutions,  45. 

3.  Constitutional  Amendments:  effect  on  police  power,  18;  authoriz- 
ing excess  condemnation    (Mass.,   N.  Y.,  Ohio,  R.  I.,  Wise.,),   131, 
148-149;    authorizing    systematic    zoning    laws     (Mass.),    289,    293; 
authorizing    use    of    police    power    for   aesthetic    purposes,    394-395 ; 
authorizing  regulation  of  advertising  in  public  places   (Mass.),  395 
and  note  22 ;  regulation  of  private  property  under  police  power  to 
promote  beauty,  proposed  form,  395  note  22  (at  p.  396). 

4.  General   Planning   Laws:    Town    Planning   Acts    (Canada),   265; 
zoning    (New    York    City),   293-295;    zoning   law   for    cities    (New 
Jersey),  298-301;  zoning  law  (District  of  Columbia),  301-304;  Prus- 
sian planning  law  of  1875  as  amended  in  1918,  451-457. 

5.  Laws  on  Specific  Subjects:   (Beauty,  Promotion  of),  Europe,  396 


674  INDEX 

and  note  23;  England,  399-400;  Germany,  403-405;  France,  422-423; 
(Benefit  Assessments),  construction  of  transit  lines  (New  York), 
372  note  22;  (Excess  Acquisition),  authorizing  or  compelling,  64; 
(Excess  Condemnation),  New  Jersey,  149;  Ohio,  151;  Oregon,  151; 
Virginia,  152;  Massachusetts,  153;  New  York,  153;  Rhode  Island, 
159;  (Public  Utilities),  amendment  or  repeal  of  charters,  163; 
(Residence  Districts),  exclusion  of  business  and  tenements  as  part 
of  systematic  zoning  (Mass.),  289;  general  and  special  provisions 
excluding  uses  from  districts,  proper  framing,  268  note  u;  (Sanita- 
tion of  Cities),  France.  76;  (Setbacks),  New  York  City,  180  note  7. 

6.  Mandatory  Statutes:  England,  409,  501,  527;  Canada,  511;  France, 
409  note  3,  515.  529.  5335  Pennsylvania,  588. 

7.  Permissive    Statutes:    advantages,    555;    zoning   statutes   generally 
permissive,  566  and  note  43 ;  New  Jersey,  578. 

8.  Constitutionality  of  Statutes  in  General:  real  issue  in  trial,  21; 
presumption  and  burden  of  proof,  21,  22. 

9.  Constitutionality    of    Particular    Statutes:    excess    condemnation, 
132-138;  replotting,  142;  setbacks,  183;  zoning  regulations,  281-292; 
race  or   color   zoning,   287   note   34;   height   zoning,   287  and  note 

35- 

Construction,  under  plan,  essential  provisions  of  a  planning  law,  444. 
See  also  CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS. 

Construction,  Cost  of,  of  parks,  see  PARKS ;  of  public  improvements, 
see  PUBLIC  IMPROVEMENTS;  of  public  utilities,  see  PUBLIC 
UTILITIES;  of  streets,  see  STREETS  AND  HIGHWAYS;  of 
transit  lines,  see  TRANSPORTATION. 

Construction,  Rules  of,  New  York  City  zoning  resolution,  320;  Alameda 
(Cal.)  ordinance.  352.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  ZONE  REGULATIONS. 

Content,  city  plan,  see  PLAN. 

Contracts,  between  city  and  owners,  replotting  (Lex  Adickes),  108,  109, 
123-127;  between  city  and  owners,  cost  of  streets  (Wiirttemberg  and 
Baden),  462;  between  city  and  owners  of  agricultural  lands  as  to 
taxes,  extension  of  city  limits,  546;  between  city  and  transportation 
company,  reason  against  long  term,  166  note  7;  between  city  and 
transportation  companies,  service  at  cost,  166  and  note  6.  See  also 
CITIES  AND  TOWNS;  LANDS;  LANDOWNERS;  LEX 
ADICKES;  PUBLIC  IMPROVEMENTS;  REPLOTTING; 
TRANSPORTATION. 

Control,  city  development,  generally,  39;  city  development  by  excess 
condemnation,  139;  public  utilities,  methods  enumerated,  162;  trans- 
portation company's  routes  and  location,  164;  transportation  com- 
pany's rates  and  facilities,  164-166;  tall  building  peril  by  zoning, 
196;  municipal  loans  (Europe),  360;  outdoor  advertising,  408-411; 
building  in  undeveloped  areas  (Prussia),  455-457;  local  action  by 
state  (Saxony),  459;  interstate  and  foreign  commerce  by  U.  S., 
planning  power  incident  to,  536-541 ;  city  action  by  planning  com- 
mission, disadvantages  if  absolute,  559-560.  See  also  ADMINIS- 
TRATION; AREA  LIMITATIONS  AND  DISTRICTS:  BUSI- 
NESS USES  AND  DISTRICTS;  CITIES  AND  Tn\v\S 
CESS  CONDEMNATION;  HEIGHT  LIMIT  \THWS  AND 
DISTRICTS;  OUTDOOR  ADVERTISING;  PLANNING  « 
MISSIONS;  PUBLIC  UTILITIES;  STATES;  TRANSPORTA- 
TION; UNITED  STATES  GOVERNMENT;  ZONING;  ZONE 
REGULATIONS. 


INDEX  675 

Cooperation,  national,  state  and  local  planning  agencies,  9.  See  also 
PLANNING  COMMISSIONS;  STATES;  UNITED  STATES 
GOVERNMENT. 

Copley  Square  Case,  limitation  of  height  of  buildings  (Mass.),  385-386. 
See  also  BEAUTY,  PROMOTION  OF;  HEIGHT  LIMITA- 
TIONS AND  DISTRICTS. 

Corners,  on  traffic  streets,  importance  of  setbacks,  181 ;  traffic  police, 
regulations,  183.  See  also  POLICE  POWER;  SETBACKS; 
STREETS  AND  HIGHWAYS. 

Cornices,  New  York  City,  270.     See  also  ZONE  REGULATIONS. 

Corporations,  housing,  power  to  expropriate  (Holland),  496;  land  de- 
velopments, plans  required  (France),  515,  533.  See  also  CON- 
STITUTIONAL AND  STATUTORY  PROVISIONS;  EMI- 
NENT DOMAIN;  HOUSING;  PLAN. 

Correction,  nonconformity  in  structures,  201-204,  206  note  14  (14)  ;  New 
York's  mistakes  in  zoning,  by  other  cities,  273.  See  also  NEW 
YORK  CITY;  NONCONFORMING  BULKS;  NONCONFORM- 
ING  USES;  ZONING. 

Cost,  of  construction  of  public  utilities,  see  PUBLIC  UTILITIES;  of 
land  required  by  city,  see  EMINENT  DOMAIN ;  of  parks,  see 
PARKS  AND  PARKWAYS;  of  plan,  see  PLAN;  of  public  im- 
provements, see  PUBLIC  IMPROVEMENTS;  of  setbacks  to  city, 
see  SETBACKS;  of  streets,  see  STREETS  AND  HIGHWAYS; 
of  transit  lines,  see  TRANSPORTATION.  See  also  EXPENSES. 

Counties,  see  following  specific  headings:  ESSEX  COUNTY  (N.  J.)  ; 
WESTCHESTER  COUNTY  (N.  Y.). 

COUNTRIES,  see  following  specific  headings:  ALGERIA;  AUS- 
TRALIA; AUSTRIA;  AUSTRO-HUNGARY;  BELGIUM; 
CANADA;  DENMARK;  ENGLAND;  FRANCE;  GERMANY; 
HOLLAND;  INDIA;  IRELAND;  ITALY;  JAPAN;  NEW 
ZEALAND;  PORTUGAL;  PRUSSIA;  QUEENSLAND;  ROU- 
MANIA;  SCOTLAND;  SOUTH  AUSTRALIA;  SWEDEN; 
SWITZERLAND;  WALES. 

Country  Planning,  see  PLANNING. 

County  Government,  grant  of  planning  power,  547.  See  also  PLAN- 
NING; RECOMMENDATIONS  AND  SUGGESTED  REFORMS. 

County  Planning,  see  PLANNING. 

County  Planning  Act,  New  Jersey,  603. 

Court  Yards,  New  York  City,  318-319;  Milwaukee,  330;  Alameda  (Cal.), 
349;  Saxony,  478.  See  also  AREA  LIMITATIONS  AND  DIS- 
TRICTS; ZONE  REGULATIONS. 

Courts,  function  and  power  in  determining  validity  of  statute,  21,  22; 
decisions,  see  DECISIONS.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS. 

Cow  Districts,  Los  Angeles,  267  note  9.     See  also  DISTRICTS. 

Cripps,  benefit  assessments  in  England,  48  note  u.  See  also  BENEFIT 
ASSESSMENTS. 

Criticisms,  procedure  in  condemnation  proceedings,  50-51 ;  commission 
form  of  tribunal,  condemnation  proceedings,  53-54!  term  "excess 
condemnation,"  59 ;  English  methods  of  slum  removal,  82,  83 ;  gridiron 
system  street  pfenning,  142;  New  York  City  zoning,  273;  industrial 
district  in  New  York  City,  273 ;  residential  district  in  New  York 
City,  273-274  and  note  IQ;  bulk  regulations  in  New  York  City,  275- 
276;  exclusion  of  residences  from  heavy  industrial  districts,  277; 
discretionary  power  of  officials  in  administering  zoning  regulations, 
279;  decisions  declaring  exclusion  of  business  from  residential 


676  INDEX 

districts  unconstitutional,  288;  German  methods  of  increment  taxa- 
tion, 374;  practice  of  extending  city  planning  jurisdiction  beyond 
city  limits,  546.  See  also  ADMINISTRATION;  BULK  ZONING; 
EMINENT  DOMAIN;  EXCESS  CONDEMNATION;  INDUS- 
TRIAL USES  AND  DISTRICTS;  NEW  YORK  CITY;  PLAN- 
NING; RECOMMENDATIONS  AND  SUGGESTED  REFORMS; 
RESIDENTIAL  USES  AND  DISTRICTS;  STREETS  AND 
HIGHWAYS;  TAXATION;  ZONE  CONDEMNATION;  ZONE 
REGULATIONS;  ZONING. 

Cross  Act,  condemnation  of  unhealthy  areas  (England),  81,  82.  See  also 
ZONE  CONDEMNATION. 

Custom,  see  USAGE. 

Custom  House,  Boston,  height  limitations,  exemption,  536.  See  also 
11  RIGHT  LIMITATIONS;  STATES;  UNITED  STATES  GOV- 
ERNMENT. 


"D"  and  "E"  Residence  Districts,  New  York  City,  274  note  19.  See  also 
NEW  YORK  CITY;  RESIDENTIAL  USES  AND  DISTRICTS. 

Damages,  condemnation  proceedings,  47-51.  See  also  EMINENT  DO- 
MAIN. 

Danube,  navigation,  local  government  by  international  agreement,  9.  See 
also  LOCAL  GOVERNMENTS. 

Dartmouth  College  Case,  charter  of  corporation  a  contract  with  the 
state,  163.  See  also  DECISIONS;  STATES. 

Debt  Limit,  see  CITIES  AND  TOWNS. 

Decisions  of  Court,  excess  condemnation,  133-138;  Boston  Back  Bay 
cases,  zone  condemnation,  140;  Dartmouth  College  case,  charter  a 
contract  with  state,  163;  bulk  zoning  in  Germany,  216;  zoning,  284 
note  34,  288-290;  Clinton  Ave.  case  (N.  Y.),  legality  of  park  strips. 
390  note  15.  See  afso  BULK  ZONING;  COURTS;  EXCESS 
CONDEMNATION;  PARKS  AND  PARKWAYS;  ZONE  CON- 
DEMNATION; ZONING. 

Decisions  of  Planning  Authorities,  review  by  Board  of  Appeals,  569. 
See  also  BOARDS  OF  APPEALS;  PLANNING  COMMISSIONS. 

Declaration  of  Public  Utility,  France,  534.  See  also  EMINENT  DO- 
MAIN'; FRANCE. 

"Declaration  of  Rights,"  France  1791,  13-14  note  i.  See  also  CON- 
STITUTIONAL AND  STATUTORY  PROVISIONS. 

Decrease,  nonconformity  in  structures,  202-204.  See  also  NONCON- 
FORMING  BULKS;  NONCONFORMING  STRUCTURES; 
NONCONFORMING  USES. 

Deeds,  restrictions  supplementing  zoning  regulations,  205  note  14  (11). 
See  also  ZONE  REGULATIONS. 

Default,  preparation  or  execution  of  plan,  mandamus  (England),  526. 
See  also  PLAN. 

Definitions,  "ancient  monuments"  (England),  440;  area  regulations,  197; 
building  regulations,  191;  "buildings"  (Saxony),  474:  bulkhead 
line,  171  ;  bulk  regulations,  193,  197;  bulk  zoning,  198;  city  planning, 
i;  city  planning  law,  10;  "common  courts"  (Diisseldorf ),  252; 
"common  .-.ide  sit  back  spaces"  (Diisseldorf ),  252;  country  plan- 
ning, 6;  county  planning,  7;  district,  204  note  14;  "double  house" 
(Diisseldorf).  252;  eminent  domain.  13;  excess  condemnation,  59; 
"graduated  building  regulation"  (Germany),  212.  216;  "house  of 
small  tenements"  (Diisseldorf ),  252;  height  regulations,  197;  inter- 
state and  international  planning,  9;  "large  tenement  house"  (Diis- 


INDEX  677 

seldorf),  252;  "monuments"  (England),  440;  metropolitan  planning, 
7,  545;  national  planning,  8;  navigable  streams,  171;  neighborhood 
planning,  206;  "obstructive  building,"  zone  condemnation  law  (Eng- 
land), 82;  "one,  two,  three  or  four  story  houses"  (Diisseldorf), 
252;  pier  head  lines,  171;  police  power,  17;  property,  law  of  emi- 
nent domain,  15 ;  public  use,  15,  135 ;  public  utility,  161 ;  racial 
zoning,  200;  replotting,  62;  "responsible  authority"  (England),  501; 
"rural  buildings"  (Diisseldorf),  252;  rural  planning,  6;  semi-resi- 
dential use  district,  278  note  28;  setback,  177;  "small  house"  (Diis- 
seldorf), 252;  state  planning,  7;  street  use,  175;  structural  require- 
ments, 191 ;  taking,  eminent  domain,  15 ;  "terminal  facility,"  Port 
Authority  Act  for  New  York  Harbor,  601 ;  "transportation  facility," 
Port  Authority  Act  for  New  York  Harbor,  601 ;  "undertaker"  of 
street  improvements  (Germany),  365;  use  zoning,  198;  work  of  art 
(New  York),  586;  zone  condemnation,  61,  139,  140;  zone  regula- 
tions, 191;  zoning,  197,  204  note  14;  zoning  board  or  commission, 
204  note  14.  See  also  statutory  definitions  listed  in  New  York  City 
Building  Zone  resolution,  305-306;  Milwaukee  zoning  ordinance,  324- 
325;  Alameda  (Cal.)  ordinance,  349-351;  Port  Authority  Act  for 
New  York  Harbor,  601-602. 

Delay,  condemnation  proceedings,  duplication  of  bill  of  rights  in  federal 
and  state  constitutions,  45.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  EMINENT  DOMAIN. 

Delegation  of  Planning  Authority,  local  governmental  agencies,  543. 
See  also  CITIES  AND  TOWNS;  LOCAL  GOVERNMENTS. 

Delivery,  store  door,  proposed  port  zoning  in  New  York,  278  note  28. 
See  also  HARBORS  AND  WATER  FRONT. 

Denmark,  legislation  for  promotion  of  beauty,  396  note  24.  See  also 
BEAUTY,  PROMOTION  OF. 

Departments,  Planning,  Pennsylvania,  595;  Minneapolis,  576.  See  also 
ADMINISTRATION;  PLANNING  COMMISSIONS. 

Dependencies  of  United  States,  application  of  constitutional  limitations, 
536  note  2.  See  also  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS;  UNITED  STATES  GOVERNMENT. 

Derogations,  see  EXCEPTIONS. 

Designs,  see  BEAUTY,  PROMOTION  OF. 

Destruction,  property  injurious  to  public  health,  15;  restoration  of  non- 
conforming  bulk  (New  York  City),  269.  See  also  EMINENT 
DOMAIN;  NONCONFORMING  BULKS;  POLICE  POWER. 

Detached  Houses,  see  RESIDENTIAL  USES  AND  DISTRICTS. 

Detail,  city  plan  requirements,  28.     See  also  PLAN. 

Determination,  bulkhead  and  pier  head  lines,  171.  See  also  HARBORS 
AND  WATER  FRONT. 

Devastated  Regions,  France,  resubdivision,  514  note  34;  application  of 
sanitary  ordinances,  514  note  34;  self-imposed  liability  of  France 
for  war  damages,  514  note  34.  See  also  LAND;  ZONE  REGULA- 
TIONS. 

Development,  bulk  zoning  see  BULK  ZONING;  city,  see  CITIES  AND 
TOWNS;  land,  see  LAND;  state  resources,  see  STATES;  use  zon- 
ing, see  USE  ZONING. 

Differences,  zoning  regulations,  equality  of  treatment,  282-283.  See  also 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS; 
ZONE  REGULATIONS. 

Discontinuance,  operations  in  nonconforming  structures  (Los  Angeles), 
201 :  features  referred  to  planning  commissions,  562.  See  also  NON- 
CONFORMING  USES;  PLANNING  COMMISSIONS. 


678  INDEX 

Discretionary  Powers,  of  officials  in  administering  zoning  regulations, 
279.  See  also  CRITICISMS;  PLANNING  COMMISSIONS; 
RECOMMENDATIONS  AND  SUGGESTED  REFORMS. 

Disease,  influence  of  bulk  regulation,  195.  See  also  ZONE  REGULA- 
TIONS. 

Disfigurement,  public  places  (Germany),  403-405;  streets  or  built  up 
localities  or  country  landscapes  (Prussia),  468;  prevention  (Saxony), 
477 ;  outdoor  advertising,  statutes  tabulated,  636.  See  also 
BEAUTY,  PROMOTION  OF;  OUTDOOR  ADVERTISING; 
STREETS  AND  HIGHWAYS. 

Displacement  of  conforming  by  nonconforming  use,  206  note  14  (Mb). 
See  also  NONCONFORMING  USES. 

Distribution,  industries  and  population,  state  planning,  8;  industries  and 
population,  possible  regional  planning  by  United  States,  541.  See 
also  PLANNING. 

District  of  Columbia,  zoning  law,  301-304;  restriction  on  powers,  535; 
regulation  of  "premises"  including  vacant  land,  566  note  43.  See 
also  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS; 
LAND;  ZONE  REGULATIONS. 

District  of  Port  of  New  York,  creation,  598.  See  also  HARBORS  AND 
WATER  FRONT. 

Districts,  change  in  character,  loss  minimized  by  use  zoning,  200;  defini- 
tion, 204  note  14;  divisions  (Frankfort),  237-238  (sec.  2);  residen- 
tial and  industrial  (Toronto),  265;  height  (Boston),  266  and  note 
6;  industrial  residence  and  residence  exception  (Los  Angeles),  267; 
cow,  undertaking,  motion  picture,  public  garage,  billboard  (Los 
Angeles),  267  note  9;  uses  excluded,  proper  framing  of  general 
and  special  provisions,  268  note  n;  New  York  City,  268;  alteration 
of  lines,  New  York  zoning  law  for  cities,  297-208;  alteration  of  lines, 
New  York  City  zoning  resolution,  322;  determination  (Milwaukee), 
337;  alteration  (Milwaukee),  339;  change  of  classification  (Alameda, 
Gal.),  343:  changes  within  district  (Alameda,  Cal.),  353;  tax,  bene- 
fit assessments,  area  of  assessment,  369;  under  Prussian  Housing 
Law  of  1918,  473. 

Diversion,  land  condemned  for  specific  use,  57  note  20.  See  also  EMI- 
NENT DOMAIN. 

Dividends,  reasonable  return  on  capital  invested,  164.  See  also  TRANS- 
PORTATION. 

Division  of  City,  zones  and  classes  (Dusseldorf),  255.  See  also  DIS- 
TRICTS; ZONING. 

Division  Fences,  compulsory  joint  improvement,  analogy  to  replotting, 
143.  See  also  REPLOTTING. 

Docks,  see  HARBORS  AND  WATER  FRONT. 

"Double  house,"  definition,  Diisseldorf  ordinance.  252.  See  also  DEFI- 
NITIONS; RESIDENTIAL  USES  AND  DISTRICTS. 

Drainage,  state  planning.  8;  planned  territory  (Saxony),  476.  See  also 
PLAN;  PLANNING. 

Drainage  Laws,  analogy  to  replottinir  as  valid  exercise  of  police  power, 
143.  See  also  POLICE  POWER;  REPLOTTING. 

Drainage  Maps,  reference  to  planning  commission  (New  York),  582. 
Sec  also  MAPS;  PLANNING  COMMISSIONS. 

Drainage  Scheme  Cases,  similarity  to  zone  condemnation,  140.  See  also 
7<>XF.  CONDEMNATION. 

Dresden,  bulk  and  use  zoning,  216.  See  also  BULK  ZONING;  USE 
ZONING. 

Drinking  Water,  provisions  for   (France),  515.     See  also  PLAN, 


INDEX  679 

Due  Process,  condemnation  proceedings,  50.  See  also  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS:  EMINENT  DO- 
MAIN. 

Dunfermline  (England)  scheme,  houses  to  acre,  503  note  13.  See  also 
AREA  LIMITATIONS  AND  DISTRICTS 

Duration  of  Plan,  see  PLAN. 

Diisseldorf,  bulk  zoning,  zones,  specially  regulated  streets  and  special 
classes  of  streets,  217;  building  ordinance,  250-261.  See  also  BULK 
ZONING;  ORDINANCES;  STREETS  AND  HIGHWAYS' 
ZONING. 

Dutch  Housing  Law,  planning  provisions,  495-497.  See  also  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS. 

Duties,  of  planning  commissions,  see  PLANNING  COMMISSIONS. 

Dwelling  Houses,  see  RESIDENTIAL  USES  AND  DISTRICTS. 

Earthquake,  plan  for  reconstruction  required  (France),  515,  530.  See 
also  REPLOTTING. 

Easements,  enumeration,  eminent  domain,  15 ;  city's  right  in  streets,  173 ; 
city's  right  in  land  front  of  building  line,  177.  See  also  AIR; 
AREA  LIMITATIONS  AND  DISTRICTS;  EMINENT  DO- 
MAIN; HEIGHT  LIMITATIONS  AND  DISTRICTS;  LAND; 
LIGHT;  STREETS  AND  HIGHWAYS;  USE  LIMITATIONS 
AND  DISTRICTS. 

East  Birmingham  (England)  scheme,  houses  to  acre,  503  note  13;  use 
districts,  504;  summary  of  scheme,  506  note  20.  See  also  AREA 
LIMITATIONS  AND  DISTRICTS;  USE  LIMITATIONS  AND 
DISTRICTS. 

East  Cleveland  Case,  exclusion  of  tenement  houses  from  one  and  two 
family  residence  districts,  288.  See  also  RESIDENTIAL  USES 
AND  DISTRICTS. 

Edmonton  (Canada),  assessment  and  taxation  on  outlying  subdivisions, 
41  note  20.  See  also  LAND;  TAXATION. 

Effect,  of  lack  of  building  regulation,  193-195  and  194  note  7;  of  plan, 
see  PLAN;  of  use  zoning,  see  USE  ZONING.  See  also  ZONE 
REGULATIONS. 

Election  by  City,  to  have  a  planning  commission,  procedure  (New 
Jersey),  579-  See  also  PLANNING  COMMISSIONS. 

Electric  Power  Systems,  part  of  city  plan,  27.    See  also  PLAN. 

Electric  Railways  Commission,  Federal,  report,  372  note  22.  See  also 
TRANSPORTATION. 

Elevated  Lines,  construction,  damages  to  landowners,  176.  See  also  EMI- 
NENT DOMAIN;  TRANSPORTATION. 

Elevator  Bulk  Heads,  New  York  City,  270.  See  also  ZONE  REGULA- 
TIONS. 

Elimination,  of  nonconformity  in  structures,  see  NONCONFORMING 
STRUCTURES;  of  remnants,  see  REMNANTS;  of  slums,  see 
ZONE  CONDEMNATION. 

Elizabeth,  N.  J.,  semi-residential  use  district,  278  note  28.  See  also 
RESIDENTIAL  USES  AND  DISTRICTS. 

EMINENT  DOMAIN:  i.  In  General;  2.  Public  Use;  3.  Right  to 
Compensation  in  General;  4.  Restrictions  on  Land  under  Plan- 
ning Law;  5.  Amount  of  Compensation;  6.  Improvements  after 
Adoption  of  Plan;  7.  Procedure;  8.  Expropriation  Laws  Abroad. 
Cross-references:  ADMINISTRATION  (5);  AREA  LIMITA- 
TIONS AND  DISTRICTS  (i);  BEAUTY,  PROMOTION  OF 
(3,  4,  7,  ii)  ;  ENGLAND  (6,  7)  ;  FRANCE  (3,  5)  ;  GERMANY 


680  INDEX 

(4,  8);  HEIGHT  LIMITATIONS  AND  DISTRICTS  (2); 
LAND  (6,  io,  ii)  ;  MASSACHUSETTS  (6)  ;  NEW  YORK  (i,  3) ; 
POLICE  POWER  (i);  RECOMMENDATIONS  AND  SUG- 
GESTED REFORMS  (3,  6,  15)  ;  REPLOTTING  (2,  3)  ;  RESI- 
DENTIAL USES  AND  DISTRICTS  (3);  SETBACKS  (i); 
STREETS  AND  HIGHWAYS  (7,  8);  UNITED  STATES  (3); 
USE  LIMITATIONS  AND  DISTRICTS  (i);  ZONING  (2). 

i.  In  General:  power  to  condemn  fundamental  in  city  planning,  12; 
definition,  13;  effect  of  local  conditions  on  power,  20;  police  power 
distinguished,  25 ;  effect  as  controlling  cost  of  land  to  city,  44 ; 
power  possessed  by  public  utilities,  161 ;  zoning  under,  impractical, 
280. 

a.  Public  Use:  condemnation  of  property  injurious  to  public  health, 
15;  diversion  to  other  uses  of  land  condemned  for  specific  use,  57 
note  20;  condemnation  of  land  already  devoted  to  public  use,  58; 
replotting,  85;  condemnation  of  buildings  in  front  of  building  line, 
177-178;  taking  for  aesthetic  purposes,  382-390,  390  note  15. 

3.  Right  to  Compensation  in  General:  compensation  to  owner,  neces- 
sity,   13,   16,  535,  588;  not  necessary  in  police  power,    17;   planning 
law    (Prussia),    470-471;    expropriation    provision,    Dutch    Housing 
Law,  496;  East  Birmingham  (England)  scheme,  509  note  20;  Town 
Planning   Acts    1909-1919    (England),   518-519,   523-525. 

4.  Restrictions   on    Land   under    Planning    Law:   compensation    for 
invasion  of  property  rights  as  affected  by  custom,  opinion  and  local 
conditions,  25;  establishment  of  building  line,  177;  no  compensation 
in  Prussia,  454,  456,  470;  no  compensation  in  Saxony,  459-460;  com- 
pensation in  Baden,  460;  compensation  in  Holland,  460;  compensa- 
tion in  Sweden,  462. 

5.  Amount  of  Compensation:  determination,  46-51 ;  damages  to  part 
of   land  not  taken,  48;   determination   under   French   expropriation 
law,  97-102;  basis  of  valuation,  French  expropriation  law,  99  note 
853. 

6.  Improvements  after  Adoption  of  Plan:  in  violation  of  city  plan, 
right   to    compensation    when    condemned,   30;    in    bed   of    mapped 
streets  made  in  bad  faith,  31  note  7;  in  mapped  streets  with  city's 
consent,  34;  made  with  knowledge  of  city  plan,  forfeiture  of  right 
to   reimbursement,  69;   Italy,  446;    Prussia,  453;   Saxony,  480-482; 
England,    509;    made   pending    preparation    and    adoption    of    plan, 
provisions  of  Town  Planning  Acts,  1909-1919   (England),  524-525. 

7.  Procedure:  function  and  value  of  legal  restrictions,  44;  delay  caused 
by  duplication  of   bill  of   rights  in    federal  and   state  constitutions, 
45;  requisites,  50;  survey  by  Russell  Sage  Foundation,  51-55;  plead- 
ing,  necessity  of   alleging  specific  public   use,  55-57 ;   procedure   in 
France,  68,  69;  preliminary  establishment  of   utility  under    French 
expropriation  law,  inquest,  91. 

8.  Expropriation  Laws  Abroad:  France,  68,  69,  91-105;  England,  70, 
71,  382  note  3;  New  Zealand,  382  note  3;  Germany,  400  note  34; 
Prussia,  452,  455,  473;  Sweden,  462;  Italy,  465-466;  Saxony,  488-489; 
Holland,  495-496. 

Encroachments,  prevention,  28-39;  on  mapped  streets  made  in  bad  faith, 
31  note  7;  on  mapped  streets  with  city's  consent,  34,  175;  removal, 
175;  lines,  fixing  by  city,  175;  allowance  (Frankfort),  229  (sec.  8); 
ornamental  projections  beyond  building  Hnrs.  .joj  note  43.  See 
also  CITIES  AND  TOWNS;  STREETS  AND  HIGHWAYS. 

Enforcement,  of  city  plan,  see  PLAN;  of  zoning  regulations,  see  ZONE 
REGULATIONS. 


INDEX  681 

ENGLAND:  i.  In  General;  2.  Acts  of  Parliament;  3.  City  Plan; 
4.  Streets;  5.  Bulk  Regulations  and  Setbacks;  6.  Promotion  of 
Beauty;  7.  Condemnation  Proceedings;  8.  Excess  Condemna- 
tion; 9.  Zone  Condemnation;  10.  Replotting;  n.  Taxation  and 
Assessments. 

Cross-references:  ADMINISTRATION  (2,  4,  5);  AREA  LIMI- 
TATIONS AND  DISTRICTS  (i,  2,  3,  4);  BEAUTY,  PROMO- 
TION OF  (2,  3,  4,  8,  ii)  ;  BENEFIT  ASSESSMENTS  (2)  ;  BULK 
ZONING  (2)  ;  CITIES  AND  TOWNS  (i)  ;  CONSTITUTIONAL 
AND  STATUTORY  PROVISIONS  (5,  6)  ;  EMINENT  DOMAIN 
(3,  6,  8);  EXCESS  CONDEMNATION  (i,  2,  5,  7);  HEIGHT 
LIMITATIONS  AND  DISTRICTS  (i,  2,  3)  ;  LAND  (7,  8,  o,  10)  : 
LANDOWNERS  (3,  4);  OUTDOOR  ADVERTISING  (3); 
PARKS  AND  PARKWAYS  (2,  5,  7,  9,  10)  ;  PLAN  (i,  2,  3,  5,  7)  ; 
PLANNING  (3,  12);  PUBLIC  IMPROVEMENTS  (3);  RESI- 
DENTIAL USES  AND  DISTRICTS  (2,  7,  9)  ;  SETBACKS  (i)  ; 
STREETS  AND  HIGHWAYS  (i,  3,  6,  10,  11)  ;  USE  LIMITA- 
TIONS AND  DISTRICTS  (i);  ZONE  CONDEMNATION  (2); 
ZONE  REGULATIONS  (4);  ZONING  (4). 

1.  In  General:  law  applicable  to  future  building  land,  3;  protection  of 
private  property  rights,  13;  problem  of  nonconformity  of  structures 
not  met  with,  201;  zoning,  210,  218  and  note  16;  planning  adminis- 
tration, 498-510. 

2.  Acts  of  Parliament:  Land  Clauses  Act,  71,  72;  Planning  Act  of  1909- 
1919,  499-510;    Ancient   Monuments    Consolidation   and  Amendment 
Act,    1913,  432-441;   Advertisements   Regulation   Act,   1907,  441-442; 
Town  Planning  Acts,  1909  and  1919,  518-529. 

3.  City  Plan:  enforcement,  30;  submission  by  individual,  requirements, 
history,  498;  section  of  city  as  planning  unit,  499;  preparation  and 
adoption  mandatory,  499,  501 ;  content,  502-503. 

4.  Streets:  direction  and  width,  regulation,  history,  498;  street  widen- 
ing, history,  498. 

5.  Bulk  Regulations  and  Setbacks:  area  and  height  limitations,  build- 
ing lines,  history,  498. 

6.  Promotion  of  Beauty:  expropriation,  382  note  3;  protection  of  ob- 
jects of  beauty,  399-400;  building  designs,  local  by-laws,  407;  out- 
door advertising,  420-421 ;   architectural   harmony  in   localities,  439- 
440;  outdoor  advertising  near  ancient  monuments,  440. 

7.  Condemnation    Proceedings:    debiting   value    of    improvement,   48 
note  ii ;  selection  of  tribunal,  54  note  16;  history,  70-71;  procedure, 
73  note  23. 

8.  Excess  Condemnation:  taking  "excess"  or  "zone"  land  by  agree- 
ment, 64 ;    statutes,   67   note   20 ;    history,  70-75,   498 ;   successful   in 
practice,  72;  onerous  conditions  in  Land  Clauses  Consolidation  Act, 

72,  73- 

9.  Zone  Condemnation:  method  of  assessing  compensation  to  owners 
of  slum  areas,  74,  75 ;  housing  reforms  and  slum  removal,  80-83 ; 
improvement  of  unhealthy  areas,  procedure,  89-90;  condemnation  of 
slum  areas,  history,  498. 

10.  Replotting:  statutes,  84  note  67. 

11.  Taxation  and  Assessments:  local  taxation  methods,  358;   benefit 
assessments,  364;  benefit  assessments,  area  of  assessment,  369. 

Enlargement,  nonconforming  building,  206  note  14  (142)  ;  features  re- 
ferred to  commission,  562.  See  also  ADMINISTRATION; 
NON-CONFORMING  STRUCTURES;  PLANNING  COMMIS- 
SIONS. 


68a  INDEX 

Enterprises,  Municipal,  source  of  revenue,  357-358;  self-supporting,  debt 
limit,  361  and  note  3.  See  also  CITIES  AND  TOWNS. 

Entire  Tract,  taking,  measure  of  damages,  47.  See  also  EMINENT  DO- 
MAIN. 

Equal  Protection  of  Law,  zoning  regulations,  282-283  •  constitutional 
guarantee  (U.  S.),  535.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS. 

Essentials,  of  planning  law,  444.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  PLAN. 

Essex  County  (N.  J.),  influence  of  parks  on  land  values,  370.  See  also 
LAND;  PARKS  AND  PARKWAYS. 

Establishment,  of  building  lines,  see  SETBACKS;  of  plan,  see  PLAN; 
of  setbacks,  see  SETBACKS;  of  street  lines,  see  STREETS  AND 
HIGHWAYS;  of  utility  under  French  expropriation  law,  see 
EMINENT  DOMAIN. 

Estates  in  Land,  enumeration,  eminent  domain,  15.  See  also  EMINENT 
DOMAIN;  LAND. 

Europe,  origin  and  development  of  zoning,  210  and  note  I ;  tall  buildings, 
217  note  15;  benefit  assessments,  364;  promotion  of  beauty  under 
police  power,  392;  legislation  for  promotion  of  beauty,  396  and  note 
23.  See  also  BEAUTY,  PROMOTION  OF;  BENEFIT  ASSESS- 
MENTS; CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS; POLICE  POWER;  TALL  BUILDINGS;  ZON- 
ING. 

Examination,  of  city  plan  before  adoption,  see  PLAN;  of  proposed 
building  plan  (Saxony),  479. 

Excavations,  conservation  of  objects  discovered  (France),  430.  See  also 
BEAUTY.  PROMOTION  OF. 

Exceptions,  jurisdiction  of  board  of  appeal,  205  note  14  (13);  height 
limitations  (New  York  City),  270;  use  district  (New  York  City), 
310-311;  height  district  (New  York  City),  312-314;  area  district 
(New  York  City),  319;  height  limitations  (Milwaukee),  329;  cases 
of  hardship  (Saxony),  459;  planning  law  (Prussia),  470;  building 
law  (Saxony),  475;  building  regulations  (Saxony),  490-491;  plan- 
ning regulations  (France),  516;  cases  of  hardship,  function  of 
Board  of  Appeals,  569;  conditions  imposed  on  allowance,  power  of 
Board  of  Appeals,  572  note  52.  See  also  AREA  LIMITATIONS 
AND  DISTRICTS;  BOARDS  OF  APPEALS.  Ill  Kill  r  LIMI- 
TATIONS AND  DISTRICTS;  RESIDENTIAL  USES  AND 
DISTRICTS;  USE  LIMITATIONS  AND  DISTRICTS;  ZONE 
REGULATIONS. 

Excess  Acquisition  of  Land,  distinguished  from  excess  condemnation, 
64;  statutory  provisions,  64.  See  also  EXCESS  CONDEMNA- 
TION. 

EXCESS  CONDEMNATION:  i.  In  General;  2.  History;  3.  Con- 
stitutionality; 4.  Constitutional  Amendments;  5.  Statutes; 
6.  Purposes;  7.  Superfluous  Lands;  8.  Repurchase;  9.  Financing. 
Cross-references:  ADMINISTRATION  (§) ;  BEAUTY,  PRO- 
MOTION OF  (3);  CITIES  AND  TOWNS  (2,  5,  7);  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS  (3,  5,  9); 
ENGLAND  (8);  FRANCE  (5,  6);  LAND  (10,  n)  ;  MASSA- 
CHUSETTS (2);  NEW  JERSEY  (i);  NEW  YORK  (2);  M  \V 
YORK  CITY  (8)  ;  PARKS  AND  PARKWAYS  (3.  8,  10) ;  PUB- 
LIC IMPROVEMENTS  (i)  ;  RECOMMENDATIONS  AND 
SUGGESTED  REFORMS  (4,  13)  :  STATI  AND 

HIGHWAYS  (7) ;  TAXATION  (4)  ;  TRANSPORTATION  (4) ; 


INDEX  683 

UNITED    STATES    (4);    UNITED   STATES   GOVERNMENT 
(4)  ;   ZONE  CONDEMNATION    (i). 

1.  In   General:   definition,   59;   distinguished    from    excess  acquisition, 
64;  successful  in  England,  72;  advantages  over  local  assessment  or 
increment  tax,  139;  distinguished  from  zone  condemnation,  140. 

2.  History:  general  statement,  65;   New  York  statute  first  in  United 
States,  70;  United  States,  discontinued  in  1834,  revived  in  1904,  70, 
128-129;  France  since  1850,  75-79;  England,  498. 

3.  Constitutionality:  general  discussion,  132-138. 

4.  Constitutional   Amendments:    general    statement,    131;    Massachu- 
setts, 148;  New  York,  149;  Ohio,  148;  Rhode  Island,  149;  Wisconsin, 
148. 

5.  Statutes:  tabulated,  633;   Connecticut,  130  note  15;   Maryland,  130 
note    15;   Massachusetts,    128,    131    and  notes   17  and  21,    153;    New 
Jersey,  149;  New  York,  131  and  note  22,  153;  Ohio,  128,  129,  131,  151; 
Oregon,   130  note  13,   131   note   19,   151 ;   Pennsylvania,  130  note   12, 
131  note  19;  Rhode  Island,  131  and  notes  17  and  22,  159;  Virginia, 
129  note  9,  130  note  16,  131  note  18,  152;  Wisconsin,  129  note  10,  130 
notes  13  and  15,  131  and  notes  18  and  20;  Belgium,  79;  Canada,  Aus- 
tralia and  India,  73  and  note  24,  511;  England,  70-75;  France,  91-105, 
514  note  34. 

6.  Purposes:  as  stated   in  various  statutes,   129;   elimination  of   rem- 
nants,   replotting,    protection   of    light   and    air,    attractiveness,    132; 
securing  increment  of  land  values  to  city,  374  note  23;  employment 
in  France,  Switzerland  and  Belgium  to  promote  beauty,  382  note  3. 

7.  Superfluous    Lands:    adjacent   to    streets,    public    buildings,    parks, 
municipally  owned  railroad,  60-6 1 ;   sale  within  limited  time    (Eng- 
land), 72;  lease  pending  sale   (England),  73. 

8.  Repurchase:  right  of  owner,   131. 

9.  Financing:  bonds,  debt  limit,  132. 

Exclusion,  uses  from  districts,  proper  framing  of  provisions,  268  note  11; 
residences  from  heavy  industrial  districts,  277 ;  business  from  resi- 
dential districts,  288;  tenements  from  residential  districts,  289.  See 
also  DISTRICTS;  INDUSTRIAL  USES  AND  DISTRICTS; 
RESIDENTIAL  USES  AND  DISTRICTS. 

Execution  of  Plan,  see  PLAN. 

Executive  Planning,  see  ADMINISTRATION. 

Exemptions,  see  EXCEPTIONS. 

Existing  Buildings,  height  and  area,  see  NONCONFORMING  BULKS ; 
use,  see  NONCONFORMING  USES. 

Expenses,  of  New  York  City  Art  Commission,  586;  of  plan,  see  PLAN; 
of  planning  commission,  see  PLANNING  COMMISSIONS. 

Experimentation  in  Planning,  function  and  powers  of  United  States, 
542  note  9;  function  of  state,  543.  See  also  STATES;  UNITED 
STATES  GOVERNMENT. 

Expert  Assistance,  state  to  local  communities,  553.  See  also  LOCAL 
GOVERNMENTS;  STATES. 

Expert  Testimony,  condemnation  proceedings,  unreliability,  54.  See  also 
EMINENT  DOMAIN. 

Experts,  employment  by  planning  commission,  see  PLANNING  COM- 
MISSIONS. 

Expiration  of  Charter,  competing  utilities,  168.  See  also  PUBLIC 
UTILITIES. 

Expropriation,  see  EMINENT  DOMAIN. 

Extension,  city  (Germany),  40;  nonconforming  use,  203,  206  note 
14  (i4b);  street  plans  (Italy),  445;  building  areas,  obligation  on 


684  INDEX 

authorities  when  needed  (Saxony,  Wiirttemberg  and  Baden),  460; 
plans  (Italy),  466;  plan  for  additional  building  (Saxony),  482-483; 
plans,  Dutch  Housing  Law,  496-497;  city  limits  into  undeveloped 
areas,  546;  city's  planning  jurisdiction  beyond  its  limits,  546.  See 
also  CITIES  AND  TOWNS;  NONCONFORMING  USES; 
PLAN;  STREETS  AND  HIGHWAYS. 

Fagades,  German  aesthetic  legislation,  403.  See  also  BEAUTY,  PROMO- 
TION OF. 

Facilities,  Transportation,  control  by  city,  164-166;  joint  use  by  com- 
peting utilities,  168.  See  also  TRANSPORTATION. 

Factory  Law,  distinguished  from  zoning  law,  205  note  14  (12).  See  also 
ZONING. 

Failure,  to  prepare  or  execute  plan,  see  DEFAULT.     See  also  PLAN. 

Families,  on  area  unit,  277.  See  also  AREA  LIMITATIONS  AND  DIS- 
TRICTS 

Fare,  Rate  of,'  see  TRANSPORTATION.    See  also  COMMUTATION. 

Farming  Structures,  in  residence  districts  (New  York  City),  268.  See 
also  RESIDENTIAL  USES  AND  DISTRICTS. 

Faults,  of  New  York  City  zoning,  273;  New  York  City  bulk  regulation, 
275-276.  See  also  BULK  ZONING;  ZONING. 

Federal  Buildings,  planning  power  of  United  States,  8.  See  also  PUB- 
LIC BUILDINGS;  UNITED  STATES  GOVERNMENT. 

Federal  Control,  see  UNITED  STATES  GOVERNMENT. 

Federal  Electric  Railways  Commission,  report,  372  note  22.  See  also 
TRANSPORTATION. 

Federal  Government,  see  UNITED  STATES  GOVERNMENT. 

Federal  Highways,  see  STREETS  AND  HIGHWAYS. 

Federal  Planning,  effect  of  federal  constitution,  8.  See  also  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS;  PLAN. 

Fee  in  Streets,  city's  right  to  take,  173.  See  also  CITIES  AND 
TOWNS;  STREETS  AND  HIGHWAYS. 

Fences,  Division,  see  DIVISION  FENCES. 

Ferry  Sheds,  powers  of  planning  commission,  561-2.  See  also  PLAN- 
NING COMMISSIONS. 

Fifth  Amendment  to  United  States  Constitution,  effect  on  police 
power,  18.  See  also  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS;  POLICE  POWER. 

Fifth  Avenue  (upper)  New  York,  height  limitations.  276  note  223.  See 
also  HEIGHT  LIMITATIONS  AND  DISTRICTS;  NEW  YORK 
CITY. 

Filling,  to  bulkhead  line,  right  of  riparian  owner.  171  note  n.  See  also 
HARBORS  AND  WATER  FRONT;  RIPARIAN  OWNERS. 

Financing,  excess  condemnation,  132;  public  works,  difficulty,  357;  city 
improvements,  359-360;  improvements,  avoidance  of  debt  limit,  362. 
See  also  CITIES  AND  TOWNS;  EXCESS  CONDEMNATION; 
PUBLIC  IMPROVEMENTS. 

Fire,  plan  for  reconstruction  required  (Prussia),  453;  reconstruction 
(Saxony),  475;  plan  for  reconstruction  required  (France),  515, 
530.  See  also  REPLOTTING. 

Fire  Prevention,  Metropolitan  Fire  Commission  (Mass.),  547-8. 

Fire  Proof  Regulations,  for  tenement  houses  (New  York  and  Chicago), 
1 92. 

Fire  Hazard,  influence  of  bulk  regulations,  195.     See  also  BULK  ZON- 

rNG. 

Fire  Peril,  tall  buildings,  195.    See  also  TALL  BUILDINGS. 


INDEX  685 

Fire  Risk,  zoning  regulations,  204  note  14  (4).  See  also  ZONE  REGU- 
LATIONS. 

Five  Cent  Fare,  influence  on  distribution  of  population,  162.  See  also 
CITIES  AND  TOWNS. 

Flat  Rate,  charges  by  transportation  companies,  165.  See  also  TRANS- 
PORTATION. 

Flats,  exclusion  from  single  family  house  districts,  205  note  14  (13).  See 
also  RESIDENTIAL  USES  AND  DISTRICTS. 

Foreign  Commerce,  federal  control,  basis  of  United  States  planning 
power,  536-541.  See  also  UNITED  STATES  GOVERNMENT. 

Foreign  Countries,  methods  of  enforcing  city  plan,  30.    See  also  PLAN. 

Forests,  municipal,  legality,  383  note  6;  conservation  by  state  regional 
planning,  544.  See  also  CITIES  AND  TOWNS;  PLANNING; 
STATES. 

Forts,  planning  powers  of  United  States,  8,  536.  See  also  UNITED 
STATES  GOVERNMENT. 

Foundations,  housing,  power  to  expropriate  (Holland),  496;  preparation 
of  plans  mandatory  (France),  533.  See  also  CONSTITUTIONAL 
AND  STATUTORY  PROVISIONS;  EMINENT  DOMAIN; 
HOUSING;  PLAN. 

Fourteenth  Amendment  to  United  States  Constitution,  police  power 
not  affected,  18.  See  also  CONSTITUTIONAL  AND  STATU- 
TORY PROVISIONS;  POLICE  POWER. 

Framing,  of  general  and  special  provisions  excluding  uses  from  districts, 
268  note  11.  See  also  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS;  DISTRICTS;  USES. 

FRANCE:  i.  In  General-  2.  Legislation;  3.  Streets;  4.  Promotion 
of  Beauty;  5.  Expropriation;  6.  Excess  Condemnation;  7.  Zone 
Condemnation;  8.  Taxation  and  Assessments. 
Cross-references :  ADMINISTRATION  (2,  4,  5,  6)  ;  BEAUTY, 
PROMOTION  OF  (2,  3,  7,  8,  n,  12);  CITIES  AND  TOWNS 
(i);  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS 
(5,  6)  ;  EMINENT  DOMAIN  (5,  7,  8)  ;  EXCESS  CONDEMNA- 
TION (2,  5,  6)  ;  HEIGHT  LIMITATIONS  AND  DISTRICTS 
(3) ;  LAND  (7)  ;  LANDOWNERS  (3)  ;  OUTDOOR  ADVER- 
TISING (3)  ;  PARKS  AND  PARKWAYS  (2,  8,  9,  10)  ;  PLAN 
(i,  2,  3,  5)  ;  PLANNING  COMMISSIONS  (2,  3,  5)  ;  STREETS 
AND  HIGHWAYS  (3,  4,  7,  11)  ;  TAXATION  (i,  9);  ZONE 
CONDEMNATION  (i). 

1.  In   General:   protection   of  private  property  rights,   13  note   i;   no 
zoning  law,  210.     But  see  NAPOLEON  I. 

2.  Legislation:  sanitation  of  cities,  76;  mandatory,  499  note  3;  Plan- 
ning Law  of  1919,  513-517,  529-534- 

3.  Streets:  taking  land  for  widening  streets,  66  note  9. 

4.  Promotion  of  Beauty:  legislation  for  promotion  of  beauty  "classi- 
fication," 396-399  and  note  23 ;  prizes  and  remission  of  taxes  for  most 
artistic  buildings,  407;    outdoor   advertising,   419-420;   protection  of 
places   of   natural   beauty,   422-423 ;    "classification"    of   historic   and 
artistic  objects  and  places,  423-432. 

5.  Expropriation:  history,  65;  procedure,  68,  69;   Expropriation  Law 
of  1841  as  amended  by  Excess  Condemnation  Law  of  1918,  91,  105. 

6.  Excess  Condemnation:  origin,  statute  of  1807,  67;  since  1850,  75- 
79;  to  promote  beauty,  382  note  3. 

7.  Zone  Condemnation:  since  1850,  75-79. 

8.  Taxation  and  Assessments:  benefit  assessments,  364. 
Franchises,  see  PUBLIC  UTILITIES. 


686  INDEX 

Frankfort-on-the-Main,  replotting  statute,  Lex  Adickes,  106-127;  "gradu- 
ated building  regulation"  or  bulk  zoning,  213-215 ;  special  regulations 
for  main  traffic  streets  running  through  several  zones,  216;  building 
ordinances,  227-250;  zoning  provisions,  262  (No.  i).  See  also  BULK 
ZONING;  LEX  ADICKES;  ORDINANCES;  REPLOTTING; 
STREETS  AND  HIGHWAYS;  ZONE  REGULATIONS. 

Free  Transfers,  transportation  companies,  168.  See  also  PUBLIC 
UTILITIES;  TRANSPORTATION. 

Freight  Lines,  construction  in  streets,  liability  to  landowner,  176.  See 
also  STREETS  AND  HIGHWAYS;  TRANSPORTATION. 

Freund,  definition  of  police  power,  17;  validity  of  compulsory  joint  im- 
provements, 143 ;  validity  of  drainage  and  irrigation  laws,  144.  See 
also  EMINENT  DOMAIN;  POLICE  POWER;  REPLOTTING. 

Function  of  beauty,  381;  of  state  in  city  and  local  planning,  543,  ;.^. 
See  also  BEAUTY,  PROMOTION  OF;  PLANNING;  STATES. 

Garages,  public  garage  districts  (Los  Angeles),  267  note  9;  restriction 
in  residence  districts  (New  York  City),  268;  public,  zoning  regula- 
tions (New  York  City),  269-270;  accessory,  zoning  regulations  (New 
York  City),  269-270  and  note  13;  discretionary  power  of  Board  of 
Appeals  (New  York  City),  270;  zoning  resolution  (New  York 
City),  311,  320;  Milwaukee  ordinance,  326;  Alameda  (Cal.),  ordi- 
nance, 343-344,  346.  See  also  BOARDS  OF  APPEALS;  DIS- 
TRICTS; NEW  YORK  CITY;  ORDINANCES;  RESIDENTIAL 
USES  AND  DISTRICTS;  ZONE  REGULATIONS. 

Garden  Apartments,  significance  (New  York  City),  276  note  23.  See 
also  RESIDENTIAL  USES  AND  DISTRICTS;  ZONE  REGULA- 
TIONS. 

Garden  City  Developments,  private  use  of  land,  effect  on,  12.  See  also 
CITIES  AND  TOWNS;  LAND. 

Gardens,  1918  amendment  of  Prussian  law  of  1875,  452:  Saxon  law,  478. 
See  also  AREA  LIMITATIONS  AND  DISTRICTS;  RESIDEN- 
TIAL USES  AND  DISTRICTS. 

Gas  Systems,  part  of  city  plan,  27;  municipal  plant,  self-supporting,  debt 
limit.  361  note  3-  See  also  CITIES  AND  TOWNS;  PLAN. 

General  Plan  Act,  Pennsylvania,  587-8.  See  also  CONSTITUTIONAL 
AND  STATUTORY  PROVISIONS. 

General  Property  Tax,  local  taxation  in  United  States,  358.  See  also 
TAXATION. 

General  Public  Use,  allegations  in  eminent  domain  pleading,  55-57.  See 
also  EMINENT  DOMAIN. 

General  Statutory  Provisions,  exclusion  of  uses  from  districts,  proper 
framing.  268  note  n.  See  also  CONSTITUTIONAL  AND  STAT- 
UTORY PROVISIONS. 

GERMANY:  i.  In  General;  2.  Legislation;  3.  Streets;  4.  Promo- 
tion of  Beauty;  5.  Zones  and  Districts;  6.  Building  Plans  and 
Regulations;  7.  Housing;  8.  Expropriation;  9.  Replotting; 
10.  Taxation  and  Assessments. 

Cross-references:  ADMINISTRATION  (2.  3.  4);  ART- A  LIMI- 
TATIONS AND  DISTRICTS  (2);  l',l  XTTV.  PROMOTION'  OF 
(2.  7.  8.  10.  ii,  12);  BENEFIT  ASSESSMENTS  (2.  5);  IU  I.K 

ZONING  (2.  3,  4);  BUSINESS  USES  AND  DISTRICTS 
CITIES  AND  TOWNS   (i,  5);  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS  U  5);  EMINENT  PoMAIN  (3. 
4,  6,  8);  HEIGHT  LIMITATONS  AND  DISTRICTS  (3,  5); 
LAND  (8,  9,  12);  ORDINANCES  (i);  OUTDOOR  ADVEKTIS- 


INDEX  687 

ING  (3);  PARKS  AND  PARKWAYS  (2);  PLAN  (i,  2,  3,  5, 
6,  7)  ;  PLANNING  COMMISSIONS  (2)  ;  PUBLIC  IMPROVE- 
MENTS (3)  ;  REPLOTTING  (4)  ;  RESIDENTIAL  USES  AND 
DISTRICTS  (i,  3,  4,  5,  6,  7,  8,  9)  ;  SETBACKS  (i,  2)  ;  STATES 
(2,  4)  ;  STREETS  AND  HIGHWAYS  (3,  4,  5,  6,  8,  10,  u,  12)  ; 
TAXATION  (2,  3,  4)  ;  ZONE  CONDEMNATION  (i)  ;  ZONE 
REGULATIONS  (i,  4);  ZONING  (4). 

1.  In  General:  protection  of  private  property  rights,  13  note  i. 

2.  Legislation:  applicable  to  large  and  small  places,  3;  planning  ad- 
ministration, 447-462. 

3.  Streets:  widening,  66  note  9;  construction,  366-367. 

4.  Promotion  of  Beauty:   legislation,  396  note  23,  403-405;  building 
regulation,   aesthetic   requirements,   400-402;   expropriation,  400  note 
34;   street  and  building  lines,  aesthetic  requirements,  401;    building 
permits,   aesthetic   requirements,   402;   preservation   of    structures   of 
historic  or  artistic  importance.  403-405;  outdoor  advertising,  421-422. 

5.  Zones  and  Districts:  control  of  city  development,  zoning  regula- 
tions, 39;  problem  of  nonconformity  of  structures  to  zoning  plan  not 
met  with,  201;  zoning,  types  of  houses,  210,  217  note  14;  early  de- 
velopment   of    use    zoning,    "protected   districts,"    211    and    note    3; 
bulk  zoning,  history,   development,  legality,  211-213,  216;   exclusion 
of  business  and  industry,  215;  height  limitations,  221-224;   number 
of  stories,  restrictions,  224;  area  limitations,  224-225;  exclusion  of 
residences,  277. 

6.  Building  Plans  and  Regulations:  "graduated  building  regulation," 
212,  216,  221;   zone  building  ordinances,  220;   health  provisions  of 
building    ordinances,    221 ;    revision    of    building    plans    by    Bureaus 
of  Building  Advice,  406  and  note  54;  restrictions  on  building  free- 
dom, remedy,  460-461. 

7.  Housing:  summary  of  regulations  and  statistics,  218-227. 

8.  Expropriation:  landownership  by  cities,  extent  and  purpose,  55,  56; 
power  of  cities  to  condemn  land,  57  note  20. 

9.  Replotting:  in  outskirts   of  cities,  85;   Statutes,  Lex  Adickes,  87, 
105-127. 

10.  Taxation  and  Assessments:  local  taxation  methods,  358;  benefit 
assessments,  364-366;  increment  taxation,  374  and  note  23. 

Gettysburg  Battlefield,  taking  bv  United  States  Government,  385.  See 
also  BEAUTY,  PROMOTION  OF. 

Gift  to  City,  works  of  art,  powers  of  art  commission,  565;  report  by 
commission  to  city  council  (New  Jersey),  580.  See  also  BEAUTY, 
PROMOTION  OF. 

Goodnow,  Social  Reform  and  the  Constitution,  power  to  tax  and 
application  to  certain  proposed  taxes,  375  note  25.  See  also  TAXA- 
TION. 

Goods,  loading  and  unloading  across  sidewalk,  183.  See  also  POLICE 
POWER;  STREETS  AND  HIGHWAYS;  ZONE  REGULA- 
TIONS. 

Government,  cost  of  executing  plan,  payment  by  (England),  5O4-5°5; 
federal,  see  UNITED  STATES  GOVERNMENT;  local,  see 
LOCAL  GOVERNMENTS;  state,  see  STATES. 

Government  Monopoly,  outdoor  advertising  (France),  420;  outdoor 
advertising  (Germany),  421.  See  also  OUTDOOR  ADVERTIS- 
ING. 

Grade  Crossings,  abolishment,  taking  for  a  public  use,  15.  See  also 
EMINENT  DOMAIN. 

Grades,  zoning  uses,  203.     See  also  USES. 


688  INDEX 

"Graduated  Building   Regulation,"   Germany,  212,  216,  221.     See  also 

BULK  ZONING. 
Grain  Terminals,  proposed  port  zoning  (New  York  City),  278  note  28. 

See  also  HARBORS  AND  WATER  FRONT. 
Grant  of  Additional  Rights,  demand  of  concessions  in  return,  control  of 

public  utility,  162,  163.     See  also  PUBLIC  UTILITIES. 
Grant    of    Charter,   competing   public    utility,    166.     See   also    PUBLIC 

UTILITIES. 
Grant  of  Permit,  to  lay  tracks,  proper  conditions,  168.    See  also  PUBLIC 

UTILITIES;  TRANSPORTATION. 
Grant  of  Powers,  to  city  to  make  zoning  regulations,  205  note  14   (5). 

See  also  CITIES  AND  TOWNS;  ZONE  REGULATIONS. 
Grants  in  Aid,  see  SUBVENTIONS. 
Grants,   Early,   taking  land   without   compensation    from   owners   under, 

45  note  2.     See  also  EMINENT  DOMAIN. 
Grants  of   Money,   from  central  government,   source  of   City's  revenue, 

357-358.     See  also  CITIES  AND  TOWNS;  SUBVENTIONS. 
Grass  Margins,  see  PARKS  AND  PARKWAYS. 
Gridiron    System,    street    planning,    142.      See    also    STREETS    AND 

HIGHWAYS. 

Groups  of  Houses,  see  RESIDENTIAL  USES  AND  DISTRICTS. 
Growth,  use  zoning  in  Germany,  211  and  note  3.    See  also  USE  ZONING. 
Guaranty,  Constitutional,  private  property  rights,   13.     See  also   CON- 
STITUTIONAL AND   STATUTORY   PROVISIONS. 

Halifax,  planning  provisions,  512.     See  also  ZONE  REGULATIONS. 

Hamburg,  replotting  statutes,  87,  105  and  note  90.  See  also  REPLOT- 
TING. 

Hampstead  (England),  effect  of  development  on  private  use  of  land,  12. 
See  also  CITIES  AND  TOWNS;  LAND. 

Harbor  Commission  (N.  J.),  statutory  provisions,  550  note  16.  See  also 
HARBORS  AND  WATER  FRONT;  PLANNING  COMMIS- 
SIONS. 

HARBORS  AND  WATER  FRONT:  i.  In  General;  a.  Title  and 
Recapture;  3.  Plan  and  Planning;  4.  Planning  Commissions; 
5.  Port  Authority;  6.  Piers;  7.  Pier  Head  Lines;  8.  Bulkhead 
Lines;  9.  Yards. 

Cross-references:  ADMINISTRATION  (3);  NEW  JERSEY  (i, 
2);  NEW  YORK  (7);  NEW  YORK  CITY  (10);  PARKS  AND 
PARKWAYS  (2) ;  PLAN  (2)  ;  PLANNING  (7) ;  TRANSPOR- 
TATION (i,  5);  UNITED  STATES  GOVERNMENT  (i); 
ZONING  (4). 
i.  In  General:  national  and  state  jurisdiction,  537;  unexercised  power 

of  United  States,  540. 

a.  Title  and  Recapture:  title  in  riparian  owner  or  state,  170;  recapture 
by  city,  advisability,  methods,  171,  172. 

3.  Plan  and   Planning:  water   front  and  improvements,  part  of   city 
plan,   27;    state's   power    subject   to    federal    regulation,   540;    state 
supervision  (New  Jersey),  550  note  16. 

4.  Planning    Commissions:   powers    over   water    front   and   improve- 
ments (561-2);  water  front  maps  (New  York),  582;  jurisdiction  of 
harbors  (Cleveland,  Ohio),  587. 

5.  Port  Authority:    New   York  and   New  Jersey,  549-55°  a°d  notes 
14  and  15;  Port  Authority  Act  for  New  York  Harbor,  597-603. 

6.  Piers:  effect  on  private  use  of  land,  11;  ripht  of  riparian  owner  to 
build,  170;  types,  proposed  port  zoning  in  New  York,  278  note  28; 


INDEX  689 

unexercised  power  of   United  States,  540;   powers  of  commission, 
561-2. 

7.  Pier  Head  Lines:  definition  and  determination,  171;  national  and 
state  regulation,  539,  540;  powers  of  commission,  561-2. 

8.  Bulkhead  Lines:  definition  and  determination,  171;  right  of  riparian 
owner  to  fill,   171   note   n;   national  and   state  regulation,  539-540; 
powers  of  commission,  561-2. 

9.  Yards:   receiving  and   classification,  proposed  port  zoning  in   New 
York,  278  note  28. 

Hardship,  ground  for  modification  of  New  York  City  zoning  resolution, 
320;  exceptions  allowed  (Saxony),  459;  exceptions  allowed,  func- 
tion of  Board  of  Appeals,  569.  See  also  BOARDS  OF  APPEALS ; 
EXCEPTIONS;  ZONE  REGULATIONS. 

Hartford  (Conn.),  taxation  of  agricultural  land,  42  note  21 ;  height  of 
buildings  about  State  Capitol,  limitation,  387  note  13;  permanent 
planning  commission,  554.  See  also  LAND;  HEIGHT  LIMITA- 
TIONS AND  DISTRICTS;  ORDINANCES;  PLANNING 
COMMISSIONS;  TAXATION. 

Hastings,  W.  G.,  definition  of  police  power,  18  note  4.  See  also  POLICE 
POWER. 

Health  Provisions,  building  ordinances  in  German  cities,  221.  See  also 
ORDINANCES;  PUBLIC  HEALTH. 

Health,  Public,  see  PUBLIC  HEALTH. 

Health  Resorts,  formulation  of  plans  required  (France),  515.  See  also 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS; 
PLAN. 

Hearings,  condemnation  proceedings,  50,  52;  on  proposed  plan  (Italy), 
446.  See  also  EMINENT  DOMAIN;  PLAN. 

Heavy  Industrial  Districts,  see  INDUSTRIAL  USES  AND  DIS- 
TRICTS. 

Heavy  Industrial  Use,  see  INDUSTRIAL  USES  AND  DISTRICTS. 

HEIGHT  LIMITATIONS  AND  DISTRICTS:  i.  In  General; 
2.  Police  Power;  3.  General  Regulations;  4.  Particular  Locali- 
ties; 5.  Stories  in  Buildings;  6.  Height  Districts. 
Cross-references:  BEAUTY,  PROMOTION  OF  (9);  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS  (9);  ENG- 
LAND (5);  GERMANY  (5);  MASSACHUSETTS  (5);  NEW 
YORK  CITY  (6);  ORDINANCES  (i)  ;  RECOMMENDATIONS 
AND  SUGGESTED  REFORMS  (8);  SETBACKS  (i). 

1.  In  General:  part  of  city  planning,  5;  part  of  city  plan,  27,  515; 
definition,  examples,  effect  on  land  values,  197,  209;  relation  to  width 
of  street  and  use  of  property,  206  note  14  (16)  ;  history  (England), 
408;  federal  property  not  subject  to  state  regulations  (Boston  customs 
house),  536. 

2.  Police    Power:   employment   in   limiting   height  about   Washington 
Monument,  Baltimore,  393  note  20;  no  compensation  to  landowner 
(England),  509. 

3.  General   Regulations:    Alameda    (Cat),   275;    Baltimore,  265   and 
note  4;  Brooklyn  (N.  Y.),  275;  Cologne  (Germany),  262  (No.  2); 
Diisseldorf,    252,    256-258;    England,    504;    France,   515;    Frankfort, 
231-2   (sec.   n),  241-243   (sec.  5),  262   (No.  i)  ;  Germany,  221-224; 
Indianapolis,  265  and  note  5;  Karlsruhe,  263    (No.  3);  Milwaukee, 
328-330;    Minnesota,   577;    Munich,  264    (No.  4);   New   York  Gty, 
270,  275-276,  402  note  43;  Ontario,  513;   Prussia,  474;  Saxony,  476, 
492;  Washington    (D.  C.),  265. 

4.  Particular    Localities:    around    public    building    or    square,     15; 


6oo  INDEX 

Upper  Fifth  Avenue,  New  York,  276  note  22a;  Copley  Square 
Massachusetts,  385-386;  about  State  House,  Boston,  387  note  13; 
about  State  Capitol,  Hartford,  Conn.,  387  note  13;  about  proposed 
Court  House,  New  York  City,  387  note  13;  about  Washington 
Monument,  Baltimore,  393  note  20. 

5.  Stories  in   Buildings:    Germany,   224;   Diisseldorf,   253,   256,   258; 
Frankfort,   262    (No.    i)  ;    Cologne,   262    (No.   2);    Karlsruhe,   263 
(No.   3);    Munich,   264    (No.   4);    Milwaukee,   335;    Prussia,   474; 
Saxony,  458,  478,  492. 

6.  Height  Districts:    Boston,  266  and  note  6;  New   York  City,  268, 
270,  311-314;    legality,  284  note   34;    Milwaukee,   328-330;    Alameda 
(Cal.),  346;  authorized  under  New  York  law,  566. 

Height  Zoning,  constitutionality,  287  note  35.  See  also  HEIGHT  LIMI- 
TATIONS AND  DISTRICTS;  ZONING. 

Height  of  Buildings  Commission  (New  York  City),  principle  of  selec- 
tion, 271.  See  also  HEIGHT  LIMITATIONS  AND  DISTRICTS; 
PLANNING  COMMISSIONS. 

Henry  IV,  establishment  of  Place  des  Vosges,  65.  See  also  EXCESS 
CONDEMNATION;  STREETS  AND  HIGHWAYS. 

Hesse,  replotting  under  eminent  domain,  85  note  68;  "classification"  of 
works  of  artistic  and  historic  value,  398  note  27.  See  also  BEAUTY, 
PROMOTION  OF;  CLASSIFICATION;  EMINENT  DOMAIN: 
REPLOTTING. 

Highways,  see  STREETS  AND  HIGHWAYS. 

Hildesheim,  regulation  of  architectural  styles,  400.  See  also  BEAUTY, 
PROMOTION  OF. 

Historic  Monuments,  outdoor  advertising  (France),  420;  outdoor  ad- 
vertising (England),  421.  See  also  BEAUTY,  PROMOTION  OF; 
OUTDOOR  ADVERTISING. 

Historic  Places,  protection  (France),  423-432;  plans  required  (France), 
515.  See  also  BEAUTY,  PROMOTION  OF;  PLAN. 

History,  excess  and  zone  condemnation,  65;  zoning,  210  note  i;  bulk 
zoning  in  Germany,  211-213;  city  planning  law  of  recent  growth,  444; 
planning  law  in  Italy,  444-445;  planning  law  in  Germany,  447-462; 
planning  law  in  England,  498-510.  See  also  AREA  LIMITATIONS 
AND  DISTRICTS;  BULK  ZONING;  EXCESS  CONDEMNA- 
TION; PLAN;  PLANNING;  STREETS  AND  HIGHWAYS; 
ZONE  CONDEMNATION;  ZONING. 

Holland,  housing  and  city  planning  law,  compensation,  460;  housing  law, 
planning  provisions,  495-497.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  HOUSING. 

Holmes,  O.  W.  (U.  S.  Supreme  Court),  police  power  not  affected  by 
Mth  Amendment.  iQ.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  POLICE  POWER. 

Home  Area  Districts,  Alameda  (Cal.)  ordinance,  348.  See  also  RESI- 
DENTIAL USES  AND  DISTRICTS. 

Home  Rule,  see  CITIES  AND  TOWNS. 

"Houses  of  Small  Tenements,"  definition,  Dusseldorf  ordinance,  252.  Sec 
also  RESIDENTIAL  USES  AND  DISTRICTS. 

Houses,  number  to  acre,  England,  503-504.  See  also  AREA  LIMITA- 
TIONS AND  DISTRICTS. 

Houses,  Apartment,  see  RESIDENTIAL  USES  AND  DISTRICTS  (4). 

Houses,  Attached,  see  RESIDENTIAL  USES  AND   DISTRICTS  (7). 

Houses,  Detached,  see  RESIDENTIAL  USES  AND  DISTRICTS  (8). 

Houses,  Groups,  see  RESIDENTIAL  USES  AND  DISTRICTS   (7). 

Houses,  Municipal,  see  MUNICIPAL  HOUSES. 


INDEX  691 

Houses,  One  Family,  see  RESIDENTIAL  USES  AND  DISTRICTS 
(5,  10). 

Houses,  Tenement,  see  RESIDENTIAL  USES  AND  DISTRICTS  (3) 

Houses,  Three  Family,  see  RESIDENTIAL  USES  AND  DISTRICTS 

Houses,  Two  Family,  see  RESIDENTIAL  USES  AND  DISTRICTS 
.(6,  11). 

Housing,  relation  to  city  planning,  5 ;  of  people  of  limited  means,  condem- 
nation of  land,  57  note  20;  sumirary  of  regulations  and  statistics 
(Germany),  218-227.  See  also  EMINENT  DOMAIN;  PLAN- 
NING; ZONE  REGULATIONS. 

Housing  Law,  distinguished  from  zoning  law,  205  note  14  (12).  See  also 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS- 
HOUSING  LAWS. 

Housing  Laws,  Housing,  Town  Planning,  etc.  Act.  1919  (England),  74 
note  27;  Housing  Law,  1901  (Holland),  74  note  28;  Housing  of 
Working  Classes,  Act.  1890  (England),  75  note  34,  89-90;  Housing 
Law  of  1918  (Prussia),  473-474. 

Housing  Reforms  in  England,  influence  on  industrial  Europe,  80. 

Housing  Rules,  promulgation,  function  of  state  planning,  8.  See  also 
PLANNING;  STATES;  ZONE  REGULATIONS. 

Idle  Land,  see  LAND. 

Illinois,  zoning  law  under  police  power,  281  note  33.  See  also  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS;  POLICE 
POWER;  ZONING. 

Imperial  "Industrial  Law,"  licensing  of  establishments  (Germany),  211. 
See  also  GERMANY. 

Importance,  New  York  City  zoning,  272;  recognition  of  general  zoning 
principles,  272  note  17;  uniformity  in  zoning  practice,  272  note  17. 
See  also  NEW  YORK  CITY;  ZONING. 

Improvement  of  Unhealthy  Areas,  procedure  in  England,  89-90.  See 
also  ZONE  CONDEMNATION. 

Improvements,  joint  and  compulsory,  under  police  power,  analogy  to  re- 
plotting,  143,  144,  146;  private,  compensation  for,  see  EMINENT 
DOMAIN;  public,  see  PUBLIC  IMPROVEMENTS.  See  also 
REPLOTTING. 

Incidence  of  Taxation,  effect  on  city  plan.  358.     See  also  TAXATION. 

Income,  Municipal,  see  CITIES  AND  TOWNS. 

Income  Tax,  see  TAXATION. 

Increase  in  Rates,  transportation  companies,  effect,  165.  See  also 
TRANSPORTATION. 

Increment  Tax,  see  TAXATION. 

Indebtedness,  Municipal,  see  CITIES  AND  TOWNS. 

India,  excess  and  zone  condemnation,  73  and  note  24;  replotting,  84  note 
67.  See  also  EXCESS  CONDEMNATION;  REPLOTTING; 
ZONE  CONDEMNATION. 

Indiana,  setback  statute,  184.     See  also  SETBACKS. 

Indianapolis,  height  limitations,  265  note  5.  See  also  HEIGHT  LIMI- 
TATIONS AND  DISTRICTS. 

Individuals,  land  developments,  plans  required  (France),  515,  533.  See 
also  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS; 
LAND;  PLAN. 

Industrial  Development,  on  large  lots,  n.  See  also  INDUSTRIAL 
USES  AND  DISTRICTS;  LAND;  SUBDIVISIONS. 

Industrial  Improvements,  excess  condemnation,  61.  See  also  EXCESS 
CONDEMNATION. 


693  INDEX 

INDUSTRIAL  USES  AND  DISTRICTS:     i.  In  General;  2.  Regu- 
lations;  3.  Light   Industrial;   4.  Heavy   Industrial 
Cross-references:      RECOMMENDATIONS   AND    SUGGESTED 
REFORMS    (9);   RESIDENTIAL  USES  AND  DISTRICTS    (i, 
12)  ;  USE  LIMITATIONS  AND  DISTRICTS  (3). 
i.  In  General:  classification  of  uses  into  light  and  heavy  industrial,  203; 

districts,  light  and  heavy  industrial,  273. 

a.  Regulations:  Toronto,  265;  Los  Angeles,  267;  New  York  City,  273; 
Milwaukee,  327;  Alameda  (Cal.),  341,  344,  345;  Prussia,  473;  East 
Birmingham  (England),  508  note  20. 

3.  Light  Industrial:  use  zoning  regulations,  203;  districts,  zoning  regu- 
lations, 205  note  14   (13);  uses  prohibited  in  district   (Milwaukee), 
327. 

4.  Heavy    Industrial:    use,   zoning   regulations,   203;   use    subdivided, 
204;  districts,  zoning  regulations,  205  note  14  (13);  districts,  exclu- 
sion   of    residences,    criticism,    277 ;    uses    excluded    entirely    from 
White  Plains,  N.  Y.,  278  and  note  27. 

Industrial  Works,  restrictions  (Saxony),  476.  See  also  ZONE  REGU- 
LATIONS. 

Industries,  distribution,  function  of  state  planning,  8;  business  districts 
(New  York  City),  268-269;  distribution  as  related  to  possible 
regional  planning  by  United  States,  541.  See  also  BUSINESS 
USES  AND  DISTRICTS;  PLANNING;  STATES;  UNITED 
STATES  GOVERNMENT. 

Inquests,  see  PLAN. 

Installment  Plan,  purchase  by  city,  avoidance  of  debt  limit,  362;  payment 
of  benefit  assessment,  365.  See  also  BENEFIT  ASSESSMENTS; 
CITIES  AND  TOWNS. 

Institute,  American  City  Planning,  see  AMERICAN  CITY  PLAN- 
NING INSTITUTE. 

Interference,  by  city  with  abutter's  rights  in  street,  173.  See  also  LAND- 
OWNERS; STREETS  AND  HIGHWAYS. 

International  Planning,  see  PLANNING. 

Interpretation  of  Ordinances,  New  York  City  zoning  resolution,  320; 
Alameda  (Cal.)  ordinance.  352.  See  also  CONSTITUTIONAL 
AND  STATUTORY  PROVISIONS;  ORDINANCES. 

Interstate  Commerce,  see  UNITED  STATES  GOVERNMENT. 

Interstate  Planning,  see  PLANNING. 

Interstate  Railroads,  see  TRANSPORTATION. 

Investigations,  preliminary  to  plan,  how  far  necessary,  i  note  2  (sb)  ; 
planning  activities,  function  and  powers  of  United  States,  542  note 
9;  planning  activities,  function  of  state,  543.  552;  inquests,  see 
PLAN.  See  also  STATES;  UNITED  STATES  GOVERN- 
MENT. 

Involuntary  Replotting,  umier  Lex  Adickes,  107.  See  also  LEX 
ADICKES;  REPLOTTING. 

Ireland,  English  planning  law  not  in  force,  510. 

Irrigation  Laws,  analniiv  to  rcplotting  as  valid  exercise  of  police  power, 
143-  See  also  POLICE  POWER;  REPLOTTING. 

Irrigation  Projects,  land  condemnation,  15.  See  also  EMINENT  DO- 
MAIN. 

Island  Dependencies  of  United  States,  application  of  constitutional 
limitations.  536  note  2.  See  also  CONSTITUTIONAL  AND 
TUTORY  PROVISIONS;  UNITED  STATES  GOVERN- 
MENT. 

Italian  Quarters,  see  RACIAL  ZONING. 


INDEX  693 

Italy,  excess  condemnation,  statutes,  67  note  10;  zone  condemnation,  8p; 
legislation  for  promotion  of  beauty,  396  note  24;  outdoor  advertis- 
ing, 420  note  72;  planning  law,  administration,  444-446;  street  plans, 
"regulatory"  and  "extension,"  445 ;  expropriation  law  of  1865,  465- 
466.  See  also  ADMINISTRATION;  BEAUTY,  PROMOTION 
OF;  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS; 
EXCESS  CONDEMNATION;  OUTDOOR  ADVERTISING; 
STREETS  AND  HIGHWAYS;  ZONE  CONDEMNATION. 

Japan,  zoning,  211;  legislation  for  promotion  of  beauty,  396  note  24.  See 
also  BEAUTY,  PROMOTION  OF;  ZONING. 

Jerusalem,  planning  ordinance  not  modeled  on  English  Act,  510  note  27. 

Jewish  Quarters,  see  RACIAL  ZONING. 

Joint  Improvements,  compulsory,  under  police  power,  analogy  to  re- 
plotting,  143,  144,  146.  See  also  POLICE  POWER;  REPLOT- 
TING. 

Joint  Use,  facilities  by  competing  utilities,  168.  See  also  PUBLIC 
UTILITIES;  TRANSPORTATION. 

Jurisdiction,  see  ADMINISTRATION. 

Juvenile  Delinquency,  lack  of  bulk  regulation,  effect,  195.  See  also 
BULK  ZONING;  ZONE  REGULATIONS. 

Kansas  City,  benefit  assessments  for  park  construction,  369  note  16.  See 
also  BENEFIT  ASSESSMENTS;  ORDINANCES;  PARKS  AND 
PARKWAYS. 

Karlsruhe,  bulk  zoning,  216;  zoning  regulations,  263  (No.  3).  See  also 
BULK  ZONING;  ORDINANCES;  ZONE  REGULATIONS. 

Kingsway  (London),  architectural  restrictions,  73.  See  also  BEAUTY, 
PROMOTION  OF. 

Kiosks,  outdoor  advertising  (France),  420.  See  also  OUTDOOR  AD- 
VERTISING. 

Kopingar,  or  urban  districts  (Sweden),  463  note  29.  See  also  CON- 
STITUTIONAL AND  STATUTORY  PROVISIONS;  PLAN- 
NING; ZONING. 

LAND  (PRIVATE):  i.  In  General;  2.  Classification;  3.  Agricul- 
tural Land;  4.  Building  Land;  5.  Urban  Land;  6.  Scenic  Land; 
7.  Development;  8.  Undeveloped  Areas;  9.  Unused  Lands; 
10.  Acquisition  by  City;  n.  Value;  12.  Taxation. 
Cross-references:  AREA  LIMITATIONS  AND  DISTRICTS 
(i);  BEAUTY,  PROMOTION  OF  (11)  ;  BULK  ZONING  (5); 
CITIES  AND  TOWNS  (5,  7)  ;  EMINENT  DOMAIN  (i,  2,  4,  5)  ; 
ENGLAND  (i)  ;  EXCESS  CONDEMNATION  (6,  7,  8);  HAR- 
BORS AND  WATER  FRONT  (6)  ;  HEIGHT  LIMITATIONS 
AND  DISTRICTS  (i)  ;  MASSACHUSETTS  (2);  NEW  YORK 
(3);  PARKS  AND  PARKWAYS  (i,  5);  PLAN  (3);  RECOM- 
MENDATIONS AND  SUGGESTED  REFORMS  (2,  6,  n,  12); 
RESIDENTIAL  USES  AND  DISTRICTS  (9)  ;  TAXATION  (i, 
2,  3,  4,  5)  ;  UNITED  STATES  (3)  ;  ZONE  REGULATIONS  (i). 

1.  In  General:  function  of  city  planning,  5;  power  to  regulate  use, 

12. 

2.  Classification:  residential  and  agricultural   (Canada),  41. 

3.  Agricultural  Land:  classification  and  taxation  (Canada),  41;  taxa- 
tion   (Hartford,   Conn.),   42  note   21;   belonging   to   United   States, 
possibilities   of   regional   planning,  541 ;   brought  within   city  limits, 
agreement  with  owners  as  to  taxes,  546. 


694  INDEX 

4.  Building  Land:  subdivision,  part  of  city  plan.  27;  subdivision,  part 
of  city  plan  (Sweden),  84;  plotting  in  Europe,  84. 

5.  Urban  Land:  classification  and  taxation  (Philadelphia),  42  note  21. 

6.  Scenic  Land:  expropriation  (New  Zealand),  382  note  3. 

7.  Development:     submission    of    plan    of     minor    streets    required 
(Zurich),  84;  effect  of  benefit  assessments,  method  of  payment,  366; 
effect  of   taxing  capital    (as   in   United   States)    or  income    (as   in 
Europe),  366;  plan  required  (England),  498,  504;  submission  of  plan 
by  landowner,   East   Birmingham    (England)    scheme,  507  note  20; 
after  adoption  of  plan  (Canada),  511;  plan  required  (France),  515, 

517. 

8.  Undeveloped  Areas:  control  of  building  (Prussia),  445-457;  build- 
ing prohibited    (Germany),  461;   restriction  on  building   (Sweden), 
462;  subject  to  Planning  Act  of  1909-1919  (England),  500. 

9.  Unused  Lands:  planning  for,  3;  tax  on,  local  taxation  in  Germany, 
England   and  United   States,  358 ;   use   regulated,   566  note  43 ;   not 
regulated  under  Massachusetts  law,  566  note  43. 

10.  Acquisition  by  City:  land   requirements  of  modern  city,  43;  cost 
controlled  by  eminent  domain,  44 ;  by  consent  of  owner  where  land 
not  obtainable  by   condemnation,   57  note  20;   land   subject  to  con- 
demnation  under  excess  condemnation  statutes,    131 ;   expropriation 
for  planning  purposes    (Prussia),  452;   expropriation    for   planning 
purposes   (England),  525. 

11.  Value:  land  taken  under  eminent  domain,  determination,  46-51;  in- 
fluence of  excess  condemnation,  139;  influence  of  lack  of  bulk  regu- 
lation,   195;   influence   of   tall   buildings,    196-197;    influence   of    use 
zoning,  199-200;  enhancement  not  sufficient  basis  for  zoning  regula- 
tions under  police  power,  204  note  14  (4) ;  influence  of  zoning  regu- 
lations, 207-209;  influence  of  parks,  369-371;  increment  taxation,  dis- 
cussion,   373-375 ;    influence    of    outdoor    advertising    in    residential 
neighborhoods,  414. 

12.  Taxation:  land  taxation  in  Germany  discussed,  366-367.     See  also 
supra  this  title  AGRICULTURAL  LAND;  URBAN  LAND;  UN- 
USED LANDS;  VALUE. 

Land    Clauses    Act,    England,    71-72.      See    also    CONSTITUTIONAL 

AND    STATUTORY    PROVISIONS. 

LANDOWNERS:     i.  In  General;  2.  Agreements  with  City;  3.  City 
Plan;  4.  Private  Development  Plan. 

Cross-references:  EMINENT  DOMAIN  (3);  EXCESS  CON- 
DEMNATION (8);  HARBORS  AND  WATER  FRONT  (8); 
LAND  O.  7.  to)  ;  MASSACHUSETTS  (2,  7)  ;  NEW  YORK  <  n  : 
ORDINANCES  (i);  PLAN  (i,  3.  4);  PUBLIC  IMI'RnV!-- 
MENTS  (3);  RECOMMENDATIONS  AND  SUGGESTED  RE- 
FORMS (3.  6.  10,  ii,  12,  14);  REPLOTTING  (3);  STREETS 
AND  HIGHWAYS  (5,6.9);  TRANSPORTATION  (4,  7);  USE 
LIMITATIONS  AND  DISTRICTS  (i);  ZONE  CONDEMNA- 
TION (2). 

i.  In  General:  rights  in  streets,  173-175;  right  against  transportation 
company  for  its  use  of  streets,  176;  effect  on  rights  of  building  lines 
(I Vim.).  587. 

a.  Agreements  with  City:  use  zoning,  le^al  and  illegal  methods.  266 
and  note  8;  payment  of  cost  of  planned  streets  (\Vurttembern  am! 
Baden),  462;  taxes,  after  opposition  to  extension  of  city  limit- 

3.  City   Plan:  right   to  propose    (Saxony),  459;   notice  of    (Saxonv). 
482;  cost  of  execution,  payment  (England).  504-505;  effect  of  .i.lop 
tion    (France).   51 7.   534:   effect   of   adoption   of   riehts  of    subsc- 


INDEX  695 

quent  owners,  507  note  20;  power  to  prevent  proposed  amendments, 
568. 

4.  Private  Development  Plan:  submission,  requirements  (England), 
504;  submission,  East  Birmingham  (England)  scheme,  507  note 
20. 

"Large  Tenement  House,"  definition,  Dusseldorf  ordinance,  252.  See 
also  RESIDENTIAL  USES  AND  DISTRICTS. 

Law,  Equal  Protection  of,  see  EQUAL  PROTECTION  OF  LAW. 

Laws,  see  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS. 

Layout  of  Streets,  see  STREETS  AND  HIGHWAYS. 

Lease,  superfluous  lands  pending  sale,  excess  condemnation,  73.  See  also 
EXCESS  CONDEMNATION;  LAND. 

Leased  Land,  eminent  domain,  value,  47.  See  also  EMINENT  DO- 
MAIN; LAND. 

Legal  Questions,  unsettled,  zoning,  291-292. 

Legal  Restrictions,  effect  on  cost  of  public  improvements,  43;  function 
and  value  in  condemnation  proceedings,  44.  See  also  EMINENT 
DOMAIN;  PUBLIC  IMPROVEMENTS. 

Legality  of  zoning  regulations  discussed,  281-292.  See  also  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS;  DECISIONS; 
ZONE  REGULATIONS. 

Lessening  of  nonconformity  in  structures,  202-204.  See  also  NONCON- 
FORMING  BULKS;  NONCONFORMING  STRUCTURES; 
NONCONFORMING  USES. 

Letchworth  (England),  development  as  affecting  private  use  of  land,  12. 
See  also  CITIES  AND  TOWNS;  LAND. 

Lewis,  Eminent  Domain,  Pennsylvania  rule  allowing  encroachments  on 
mapped  streets,  31  note  7;  debiting  value  of  improvement  in  con- 
demnation proceedings,  48  note  n.  See  also  EMINENT  DOMAIN; 
ENCROACHMENTS. 

Lex  Adickes,  influence  on  replotting  in  Prussia,  87,  451 ;  statutory  provi- 
sions, 106-127.  See  also  ADICKES;  REPLOTTING. 

Liability  of  Transportation  Company,  to  abutter  for  use  of  streets,  176. 
See  also  LANDOWNERS;  TRANSPORTATION. 

Light,  purpose  of  excess  condemnation,  133 ;  tall  buildings,  196 ;  reason 
for  zoning  regulations,  204  note  14  (4)  ;  Dusseldorf  ordinance,  pre- 
venting obstructions,  253.  See  also  AREA  LIMITATIONS  AND 
"  DISTRICTS;  CONSTITUTIONAL  AND  STATUTORY  PRO- 
VISIONS; EASEMENTS;  EXCESS  CONDEMNATION;  TALL 
BUILDINGS;  ZONE  REGULATIONS. 

Light  Industrial  Use,  see  INDUSTRIAL  USES  AND  DISTRICTS. 

Limitations,  constitutional,  see  CONSTITUTIONAL  AND  STATU- 
TORY PROVISIONS;  on  amount  of  benefit  assessments,  see 
BENEFIT  ASSESSMENTS;  on  area  of  buildings,  see  AREA 
LIMITATIONS  AND  DISTRICTS;  on  height  of  buildings,  see 
HEIGHT  LIMITATIONS  AND  DISTRICTS;  on  municipal  in- 
debtedness, see  CITIES  AND  TOWNS;  on  tax  rate,  see  TAXA- 
m  TION. 

Limits  of  City,  extension  into  undeveloped  areas,  546.  See  also  CITIES 
AND  TOWNS. 

Living  Quarters,  congested,  reason  for  zoning  regulations,  204  note 
14  (4).  See  also  ZONING  REGULATIONS. 

Loading  Goods,  across  sidewalk,  traffic  regulations,  183.  See  also 
POLICE  POWER;  ZONE  REGULATIONS. 

Loans  to  City,  see  CITIES  AND  TOWNS. 

Local  Assessments,  see  BENEFIT  ASSESSMENTS. 


696  INDEX 

Local  Conditions,  effect  on  police  power  and  power  of  eminent  domain, 
20;  effect  on  right  to  compensation  for  invasion  of  property  rights, 
25.  See  also  EMINENT  DOMAIN;  POLICE  POWER. 

Local  Governments,  power  to  zone,  necessity  of  specific  authorization, 
281;  creation  by  state  for  local  planning,  545;  with  planning  juris- 
diction only  for  areas  larger  than  and  including  cities,  reform  sug- 
gested, 547.  See  also  CITIES  AND  TOWNS;  PLANNING; 
PLANNING  COMMISSIONS;  RECOMMENDATIONS  AND 
SUGGESTED  REFORMS. 

Local  Planning,  see  PLANNING. 

Local  Self-Gpvernment,  see  CITIES  AND  TOWNS. 

Local  Taxation,  methods  in  Germany,  England  and  United  States,  358. 
See  also  TAXATION. 

Localities,  preservation  of  character  (Germany),  405.  See  also  ZONE 
REGULATIONS. 

Location,  features  referred  to  commission,  jurisdiction,  562;  buildings, 
power  of  art  commission,  565 ;  works  of  art,  buildings,  etc.,  control 
by  planning  commission  (Cleveland,  Ohio),  587.  See  also  AD- 
MINISTRATION; BEAUTY,  PROMOTION  OF;  PLANNING 
COMMISSIONS. 

Locations  of  Transportation  Company,  city's  power  to  control,  164.  See 
also  CITIES  AND  TOWNS;  TRANSPORTATION. 

Lodging  Houses,  law  regulating  occupancy  (England),  81.  See  also 
HOUSING. 

Long  Term  Contracts  between  city  and  transportation  company,  166  and 
note  7.  See  also  CITIES  AND  TOWNS;  TRANSPORTATION. 

Lord  Shaftesbury  Acts,  1851,  occupancy  of  lodging  houses  and  erection 
of  municipal  houses  (England),  81.  See  also  HOUSING;  MUNIC- 
IPAL HOUSES. 

Los  Angeles,  building  regulations  retroactive,  191  note  2;  nonconformity 
of  structures  to  zoning  plan,  201 ;  zoning  regulations,  267.  See 
also  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS; 
NONCONFORMING  STRUCTURES;  PLAN;  ZONE  REGULA- 
TIONS. 

Lots,  see  SUBDIVISIONS. 

Madras,  planning  law  in  part  modeled  on  English  act,  510  note  27.  See 
also  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS. 

Maintenance  of  Streets,  see  STREETS  AND  HIGHWAYS. 

Management,  see  ADMINISTRATION. 

Mandamus,  to  compel  authorities  to  make  or  execute  plan  (England),  526. 
See  also  PLAN. 

Mandatory  Statutes,  see  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS. 

Manitoba,  excess  condemnation,  statute,  67  note  10;  Town  Planning  Act, 
265  note  3;  self-supporting  enterprises  by  city,  debt  limit,  361  note  3; 
benefit  assessments,  construction  or  extension  of  public  utilities,  372 
note  20:  planning  law  modeled  on  English  act,  510  note  27.  See  also 
BEAUTY.  PROMOTION  OF;  CITIES  AND  TOWNS;  CON- 
STITUTIONAL AND  STATUTORY  PROVISIONS;  EXCESS 
CONDEMNATION;  PUBLIC  UTILITIES. 

Manufacturing  Uses  and  Districts,   Frankfort    (Germany),  214;  exclu- 
sion   from   residential   districts,  constitutionality,  287  note  36;    East 
Birmingham    (England)    scheme.   508  note   20.     See   also   INDI'S 
TRIAL  USES  AND  DISTRICTS;  RESIDENTIAL  USES  AND 
DISTRICTS. 


INDEX  697 

Mapped  Streets,  encroachments,  various  methods  of  preventing,  28-39; 
protection,  new  method  suggested,  34.  See  also  ENCROACH- 
MENTS; STREETS  AND  HIGHWAYS. 

Maps,  content,  preparation,  adoption,  alteration,  commission's  powers  and 
duties,  561;  city  plan  (New  York  City),  561  note  30;  preparation, 
adoption,  alteration  (New  York's  statute  for  cities),  582-583;  refer- 
ence to  planning  commission  (New  York  statute  for  cities),  582- 
583.  See  also  PLAN;  PLANNING  COMMISSIONS. 

Margins,  Grass,  see  PARKS  AND  PARKWAYS. 

Market  Value,  measure  of  damages  in  condemnation  proceedings  47.  See 
also  EMINENT  DOMAIN. 

Markets,  Wholesale,  proposed  port  zoning  (New  York  City),  278  note 
28;  public,  see  PUBLIC  MARKETS.  See  also  HARBORS  AND 
WATER  FRONT. 

Marshall,  C.  J.  (U.  S.  Supreme  Court),  presumption  of  validity  of 
statute,  22.  See  also  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS. 

Maryland,  excess  condemnation,  130  note  15.  See  also  EXCESS  CON- 
DEMNATION. 

MASSACHUSETTS:  i.  Constitutional  Amendments;  2.  Excess 
Condemnation;  3.  Setbacks;  4.  Exclusion  of  Tenements;  5.  Lo- 
cality Restrictions;  6.  Housing;  7.  Amendment  of  City  Plan; 
8.  Boards  and  Commissions. 

Cross-references:  ADMINISTRATION  (3);  BEAUTY,  PRO- 
MOTION OF  (9);  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS  (3,  5)  ;  EXCESS  CONDEMNATION  (4,  5) ; 
HEIGHT  LIMITATIONS  AND  DISTRICTS  (4)  ;  LAND  (9)  ; 
OUTDOOR  ADVERTISING  (2,  5)  ;  PARKS  AND  PARKWAYS 
(4)  ;  PLAN  (2,  5,  7)  ;  PLANNING  (n)  ;  PLANNING  COMMIS- 
SIONS (4,  5) ;  RESIDENTIAL  USES  AND  DISTRICTS  (3) ; 
SETBACKS  (2,  4)  ;  STREETS  AND  HIGHWAYS  (2)  ;  ZON- 
ING (2). 

1.  Constitutional  Amendments:  authorizing  systematic  zoning,  limi- 
tation to  regulations  of  buildings,  289,  293,  566  note  43 ;  authorizing 
regulation   of  advertising   in   public  places,   395  note  22.     See  also 
infra  this  title  EXCESS  CONDEMNATION. 

2.  Excess  Condemnation:  early  legislation   (1904),  condemnation  of 
remnants,   67  note   10,   128;    constitutional   amendment    (1911),    131, 
148;    power   extended   to  towns,    131    note    17;    only  land   sufficient 
for  building  lots,    131    note   21;    owner's   right  to   repurchase,    132; 
decision    on    constitutionality,    134;    statute    authorizing,    Worcester 
(street    specified),    153. 

3.  Setbacks:  statute,  177  note  6,  184. 

4.  Exclusion   of   Tenements:    from    districts   as   part   of    systematic 
zoning,  constitutionality,  289. 

5.  Locality  Restrictions:  heights  of  buildings  about  Copley  Square, 
Boston,  385-386;  building  lines  and  other  restrictions  on  land  about 
parks,  387  note  13. 

6.  Housing:  for  people  of  limited  means,  condemnation  authorized,  57 
note  20. 

7.  Amendment  of  City  Plan:  power  of  property  owners  to  prevent, 
568  note  50. 

8.  Boards  and   Commissions:   Metropolitan   planning  authority,   law 
and  practice,  547;  Homestead  Commission,  expert  assistance  in  plan- 
ning to  local  communities,  553  note  18;  planning  commissions  with 
advisory  powers  only,  558  note  26 ;  consolidation  of  planning  and  park 


698  INDEX 

boards,  criticism,  562  note  35 ;  under  proposed  Metropolitan   Plan- 
ning Act,  589-504. 

Massachusetts  Supreme  Judicial  Court,  power  of  state  to  limit  height 
of  buildings  about  Copley  Square,  Boston,  386-387.  See  also 
HEIGHT  LIMITATIONS  AND  DISTRICTS. 

Maximum  Tax  Rate,  fixing,  method  in  United  States,  359.  See  also 
TAXATION. 

Mayor's  Billboard  Advertising  Commission  (New  York  City),  pro- 
gressive tax  on  outdoor  advertising,  411  note  63  (at  pp.  417,  418). 
See  also  OUTDOOR  ADVERTISING. 

McAneny,  Pres.  Borough  of  Manhattan,  removal  of  street  encroach- 
ments, 175.  See  also  ENCROACHMENTS. 

McQuillin,  Municipal  Corporations,  favorable  outlook  for  legislation  to 
promote  beauty,  422.  See  also  BEAUTY,  PROMOTION  OF. 

Measure  of  Damages,  condemnation  proceedings,  market  value,  47.  See 
also  EMINENT  DOMAIN". 

Membership,    art     commission,     see     BEAUTY,     PROMOTION     OF; 
planning  commission,  see  PLANNING  COMMISSIONS. 

Merchandise,  unloading  or  storing  on  streets,  abutter's  rights,  175.  See 
also  LANDOWNERS;  STREETS  AND  HIGHWAYS. 

Methods,  enforcement  of  city  plan,  see  PLAN ;  obtaining  compensation 
for  land  taken,  see  EMINENT  DOMAIN;  preventing  encroach- 
ments, see  ENCROACHMENTS. 

Metropolitan  Planning,  see  PLANNING. 

Milwaukee,  area  limitations,  families  per  area  unit,  277  note  24 ;  setbacks, 
280  note  31 ;  zoning  ordinance,  324-341.  See  also  AREA  LIMITA- 
TIONS AND  DISTRICTS;  ORDINANCES;  SETBACKS; 
ZONE  REGULATIONS. 

Mining  Developments,  condemnation  of  land,  15.  See  also  EMINENT 
DOMAIN. 

Ministry  of  Health,  control  and  powers  (England),  501-502. 

Minneapolis,  planning  department  in  charge  of  planning  commissions, 
576;  planning  law,  576-578.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  ORDINANCES;  PLANNING 
COMMISSION. 

Minnesota,  Planning  Law  of  1919,  576-578.  See  also  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS. 

Minor  Residential  Streets,  see  SETBACKS,  178.  See  also  SETBACKS ; 
STREETS  AND  HIGHWAYS. 

Missouri,  zoning  invalid  unless  authorized  by  statute,  recent  decision  dis- 
cussed, 202  note  443;  commission  to  report  on  proposed  amendments 
to  city  plan.  568  note  48.  See  also  DECISIONS;  PLAN;  ZONING. 

Mistakes,  New  York  Citv  zoning,  correction  by  other  cities,  273.  See 
also  NEW  YORK  CITY;  ZONING. 

Modification,  zoninp  regulations  in  cases  of  hardship  (New  York),  \2O. 
See  also  APPEAL;  BOARDS  OF  APPEALS;  EXCEPTIONS. 

Monopoly,  public  utility,  168;  government,  see  GOVERNMENT  M<  '- 
NOPOLY.  See  also  PUBLIC  UTILITIES;  TRANSPORTA- 
TION. 

Monthly  Ticket,  city  and  suburban  transportation,  165.  See  also  TRANS- 
PORTATION. 

Monuments,  definition  in  English  law,  440;  location,  reference  to  plan- 
nine  commission   (New  York).  581.     See  also  ANCIENT   M 
I  s;   PLANNING  mxp'issi- 

Mortgaged  Property,  purchase  by  city,  debt  limit,  362.  See  also  CITIES 
A  NO  TOWNS. 


INDEX  699 

Mortgages,  effect  on  sales  of  land  subject  to  increment  tax   (Germany), 

374-     See  also  LAND;  TAXATION. 

Motion    Picture    Districts,   Los   Angeles,   267   note   o.     See   also   DIS- 
TRICTS. 
Movable   Objects,  historic  and  artistic  value,  "classification"    (France), 

398.     See  also  BEAUTY,  PROMOTION  OF. 
Multiple   Dwellings,   exclusion    from   single    family  house    districts,   205 

note  14  (13);  residence  districts    (New  York  City),  268.     See  also 

RESIDENTIAL  USES  AND  DISTRICTS. 
Munich,  zoning  regulations,   264    (No.  4).     See   also   ORDINANCES; 

ZONE  REGULATIONS. 

Municipal  Borrowing,  see  CITIES  AND  TOWNS. 
Municipal  Centers,  regulation  of  buildings  (Saskatchewan),  392  note  16. 

See  also  CITIES  AND  TOWNS. 
Municipal  Enterprises,  source  of  revenue,  357-358;  self-supporting,  debt 

limit,  361  and  note  3.     See  also  CITIES  AND  TOWNS. 
Municipal  Forests,  legality,  383  note  6.    See  also  CITIES  AND  TOWNS. 
Municipal   Houses,  working  classes    (England),  81.     See  also   CITIES 

AND  TOWNS. 

Municipal  Indebtedness,  see  CITIES  AND  TOWNS. 
Municipal  Ownership,  public  utilities,   167 ;  provision  in   franchises   for 

taking    over    public    utilities,    169-170.      See    also    CITIES    AND 

TOWNS;    FRANCHISES;    PUBLIC    OWNERSHIP;    PUBLIC 

UTILITIES. 
Municipal  Plan  and  Art  Commission  Act,  New  Jersey,  578-581.    See  also 

CONSTITUTIONAL  AND  STATUTORY  PROVISIONS. 
Municipal  Property,  source  of  revenue,  357-358.    See  also  CITIES  AND 

TOWNS. 
Municipal  Railroad,  excess  condemnation,  61.     See  also  CITIES  AND 

TOWNS. 

Municipal  Revenue,  sources,  357.     See  also  CITIES  AND  TOWNS. 
Municipal  Taxation,  methods  in  Germany,  England  and  United   States, 

358.    See  also  CITIES  AND  TOWNS;  ENGLAND;  GERMANY; 

TAXATION;   UNITED  STATES. 

Napoleon  I,  decree  1810,  origin  of  use  zoning,  210  note  i.  See  also 
USE  ZONING. 

Napoleon  III,  statutes  for  sanitation  of  cities  (France),  76. 

National  Art  Commissions,  powers,  565.  See  also  BEAUTY,  PROMO- 
TION OF. 

National  Control,  see  UNITED  STATES  GOVERNMENT. 

National  Highways,  possibilities  of  national  planning,  541.  See  also 
STREETS  AND  HIGHWAYS;  UNITED  STATES  GOVERN- 
MENT. 

National  Parks,  planning  power  of  United  States,  9;  possibilities  of 
regional  planning,  541.  See  also  PLANNING;  UNITED  STATES 
GOVERNMENT. 

National  Planning,  see  PLANNING. 

Navigable  Waters,  riparian  owners,  title,  170;  definition,  171;  riparian 
owner's  right  to  fill  to  bulkhead  line,  171  note  11;  riparian  owner's 
preferred  right  to  purchase  tide  lands,  171  note  n;  national  and 
state  jurisdiction,  537-  See  also  HARBORS  AND  WATER 
FRONT;  RIPARIAN  OWNERS. 

Navigation,  planning  power  of  United  States,  9.  See  also  UNITED 
STATES  GOVERNMENT. 


700  INDEX 

Nebraska,  planning  commissions,  powers,  558  note  26.  See  also  PLAN- 
MXG  COMMISSIONS. 

Necessity  of  city  plan,  27;  of  fixing  general  features  only  of  city  plan, 
28;  of  municipal  borrowing,  359-360.  See  also  CITIES  AND 
TOWNS;  PLAN. 

Negro  Zoning,  constitutionality,  decisions,  287  note  34.  See  also 
RACIAL  ZONING. 

Neighborhoods,  prevailing  character,  zoning  in  built  up  districts,  202 ; 
preservation  of  character  (Germany),  405.  See  also  DISTRICTS; 
ZONING. 

Neighborhood  Planning,  definition,  purpose,  execution,  205.  See  also 
PLANNING 

Net  Income,  payment  by  city  for  improvements,  avoidance  of  debt  limit. 
362.  See  also  CITIES  AND  TOWNS. 

New  Brunswick  (Canada),  planning  law  modeled  on  English  act,  510 
note  27.  See  also  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS. 

NEW  JERSEY:     i.  In  General;  2.  Commissions;  3.  Districts. 

Cross-references:  BEAUTY,  PROMOTION  OF  (7);  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS  (4,  5,  7) ;  EX- 
CESS CONDEMNATION  (5)  ;  HARBORS  AND  WATER 
FRONT  (3,  5);  NEW  YORK  (i);  PLAN  (2);  PLANNING 
(6);  PLANNING  COMMISSIONS  (2,  4,  5);  PUBLIC  IM- 
PROVEMENTS (2). 

1.  In  General:  excess  condemnation  in  Newark,  149;  zoning  law  for 
cities,  298-301;  planting  of  shade  trees,  383  note  6;  port  authority, 
549-55O   and    notes    14  and    15,   597-603 ;    Municipal    Plan   and   Art 
Commission  Act,  578-581. 

2.  Commissions:   Harbor  Commission,  supervision  of  harbors,  550  note 
16;    planning,    with    advisory    powers    only,   558   note   26;    planning 
and  art,  combined,  565  note  42;  to  report  on  proposed  amendments 
to  city  plan,  567  note  46,  568  note  48. 

3.  Districts:  recent  decision  on  one  family  house  districts,  discussion, 
292  note  44a ;  zoning  law  originally  confined  to  location  of  trades 
and  industries,  residences  not  included,  different  now,  566  note  43. 

NEW  YORK:  i.  In  General;  2.  Excess  Condemnation;  3.  Beauty, 
Promotion  of;  4.  Setbacks. 

Cross-references:  BEAUTY,  PROMOTION  OF  (7);  BOARDS 
OF  APPEALS  (3) ;  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS  (5);  EXCESS  CONDEMNATION  (2,  4,  5): 
HARBORS  AND  WATER  FRONT  (5);  HEIGHT  LIMITA- 
TIONS AND  DISTRICTS  (6) ;  PARKS  AND  PARKWAYS  (2. 
6,  7,  8,  10)  ;  PLAN  (2,  4)  ;  PLANNING  COMMISSIONS 
4,  5);  RESIDENTIAL  USES  AND  DISTRICTS  (i);  SIT 
BACKS  (2)  ;  STREETS  AND  HIGHWAYS  (->.  8):  TAXATION 
(4);  TRANSPORTATION  (5);  USE  LIMITATIONS  AND 
DISTRICTS  (2);  ZONE  REGULATIONS  (3). 
i.  In  General:  Port  authority,  New  York  and  New  Jersey,  10,  549- 
550  and  notes  14  and  15,  597-603;  procedure  in  condemnation  pro- 
ceedings, constitutional  amendment  allowing  change  in  tribunal,  53 ; 
zoning  law  under  police  power  for  Westchester  County  requiring 
notice  to  property  owners,  281  note  33 ;  zoning  law  for  New  York 
City,  293-295,  566  and  note  43 ;  City  and  Village  Planning  Law,  295- 
298,  581-584;  statute  authorizing  benefit  assessment  for  construction 
of  transit  lines,  372  note  22;  proposed  increment  taxation  law,  374 
and  note  24;  proposed  state  and  local  housing  and  planning  boards, 


INDEX  701 

553  note  18;  power  of  property  owners  to  prevent  amendment  to 
city  plan,  568. 

2.  Excess    Condemnation:    origin,    70;    from    enactment    of    statute 
(1812)    to   decision   declaring   it   unconstitutional    (1834),    128,    133; 
constitutional    amendment    authorizing    excess    condemnation,     131, 
149;  statute  authorizing  excess  condemnation  in  New  York  City,  153. 

3.  Beauty,  Promotion  of:  recognition  in  law  as  public  purpose,  382 
note  2;    Palisades  Interstate    Park,  condemning  land,   390  note    15; 
Clinton  Avenue  case,  park  strips  along  highways,  390  note  15;  pro- 
posed progressive  taxation  of  outdoor  advertising,  411  note  63. 

4.  Setbacks:  statute,  185-189. 

NEW  YORK  CITY:  i.  In  General;  2.  Legislation;  3.  Board  of  Es- 
timate; 4.  Building  Zone  Resolution;  5.  Plan;  6.  Limitations  and 
Districts;  7.  Setbacks;  8.  Excess  Condemnation;  9.  Tall  Build- 
ings; 10.  Water  Front;  n.  Subways;  12.  Debt  Limit;  13.  Bene- 
fit Assessments;  14.  Art  Commissions;  15.  Zoning  Committee. 
Cross-references:  ADMINISTRATION  (5,  6);  AREA  LIMITA- 
TIONS AND  DISTRICTS  (2,  3,  6) ;  BEAUTY,  PROMOTION 
OF  (6,  7)  ;  BOARDS  OF  APPEALS  (3)  ;  BULK  ZONING  (2) ; 
BUSINESS  USES  AND  DISTRICTS  (2,  3);  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS  (4,  5)  ;  HARBORS 
AND  WATER  FRONT  (5);  HEIGHT  LIMITATIONS  AND 
DISTRICTS  (3,  4,  6)  ;  INDUSTRIAL  USES  AND  DISTRICTS 
(2);  NEW  YORK  (i,  2);  ORDINANCES  (2);  PLAN  (2,  7); 
PLANNING  COMMISSIONS  (2)  ;  RESIDENTIAL  USES  AND 
DISTRICTS  (3,  4,  5,  9,  10)  ;  SETBACKS  (i,  2)  ;  STREETS  AND 
HIGHWAYS  (3);  TRANSPORTATION  (7);  UNITED 
STATES  GOVERNMENT  (i)  ;  USE  LIMITATIONS  AND 
DISTRICTS  (2,  4);  ZONE  REGULATIONS  (2,  3,  4);  ZON- 
ING (4). 

1.  In  General:  zoning,  importance,  272;  zoning,  faults,  273. 

2.  Legislation:     Tenement    House   Law,    fire   proof    regulations,    192; 
zoning  law,  29.\-J95 ;  zoning  law  permissive,  566.    See  also  infra  this 
title  ART  COMMISSIONS;  EXCESS  CONDEMNATION;  SET- 
BACKS. 

3.  Board  of  Estimate :  power  under  zoning  law,  293-295 ;  power  to 
alter  regulations,  293 ;  power  to  make  benefit  assessments  for  cost 
of  transit  lines,  372  note  22;  appointment  of  planning  committee,  555 
note  21 ;  power  to  act  on  city  plan  reported  by  commission,  567. 

4.  Building   Zone   Resolution:   provisions   discussed,   268-276;   consti- 
tutionality upheld,  290;  provisions,  305-323. 

5.  Plan:  protection,  proposed  charter  amendment  requiring  permit  to 
build  in  mapped  street,  35  note  16;  preparation,  report  to  Board  of 
Estimate,  271-272,  567;  map,  561  note  30. 

6.  Limitations  and  Districts:  use  districts,  268;  unrestricted  use  dis- 
tricts, 268,  269;  nonconforming  bulks  and  uses,  269;  garages,  269; 
height   districts,   270;    area   districts,   270;    power   under  charter   to 
create  single  family  house  districts,  275  note  21 ;  garden  apartments, 
significance,   276  note  23 ;   limitation   of   heights  of  buildings  about 
proposed  Court  House,  387  note  13;  height  limitations,  towers,  effect 
of  setbacks,  irregular  sky  line,  402  note  43. 

7.  Setbacks:  statute,  180  note  7;  charter  amendment,  power  to  estab- 
lish, 185,  189;  part  of  official  map,  561  note  31. 

8.  Excess  Condemnation:  charter  amendment,  153. 

9.  Tall    Buildings:    congestion   in    the   lower   city,    result   of    lack   of 
regulation,  194;  control  of  peril  by  zoning  possible,  106. 


702  INDEX 

10.  Water  Front:   inalienability  except  by  state,  recapture  clause,   172 
note  12;  suggestions  for  port  zoning,  278  note  28. 

11.  Subways:  franchises,  discussion,  169;  construction  under  post  office, 
federal  control,  536. 

12.  Debt  Limit:  self-supporting  enterprises  not  within  debt  limit,  361 
note  3. 

13.  Benefit  Assessments:  area  of  assessment,  368  note   15;   for  park 
construction,     369;     for    construction     of     transit    lines,     372     note 

22. 

14.  Art  Commission:    New  York  City  statute,  584-7;  powers,  586-7. 

15.  Zoning  Committee:  functions,  569  note  51. 

New  York  Court  of  Appeals,  police  power,  influence  of  usage  and  pub- 
lic opinion,  19.  See  also  POLICE  POWER. 

New  Zealand,  expropriation  of  scenic  land,  382  note  3.  See  also 
BEAUTY,  PROMOTION  OF;  EMINENT  DOMAIN. 

Newark  (N.  J.),  charter  amendment,  excess  condemnation,  149.  See  also 
CITIES  AND  TOWNS;  EXCESS  CONDEMNATION;  ORDI- 
NANCES. 

Newsstands,  use  of  streets,  legality,  176.  See  also  STREETS  AND 
HIGHWAYS. 

Nichols,  Eminent  Domain,  expenditures  of  public  money  for  artistic 
purposes,  educational  value,  389-390.  See  also  BEAUTY,  PROMO- 
TION OF;  EMINENT  DOMAIN. 

Nonconforming  Bulks,  method  of  dealing  with,  202-203 ;  New  York  City. 
269,  322-323;  Milwaukee.  339,  340;  Alameda  (Cal.),  355.  See  also 
ZONE  REGULATIONS. 

Nonconforming  Structures,  existing  when  building  line  established,  re- 
moval, renewal,  repairs,  177,  201-204;  problem  in  United  States,  200; 
method  of  dealing  with,  201-204,  206  note  14  (14)  ;  alterations.  206 
note  14  (143  and  e)  ;  enlargement,  206  note  14  (143);  destruction, 
East  Birmingham  (England)  scheme,  508  note  20;  no  compensation 
when  condemned  (Penn.),  588.  See  also  ZONE  REGULA- 
TIONS. 

Nonconforming  Uses,  methods  of  dealing  with,  203-204 ;  changes,  206 
note  14  (i4c.  d,  f),  269;  extension,  206  note  14  Ci^b);  New  York 
City.  269,  310-311,  322-323;  Milwaukee,  327-328,  330.  340;  Alameda 
(Cal.),  345.  355;  not  a  serious  problem  in  England,  504,  See  also 
ZONE  REGULATIONS. 

Non-Residents,  membership  on  local  planning  commissions,  557.  See 
also  PLANNING  COMMISSION'S. 

North  Brumsgrove  (England)  scheme,  houses  to  acre,  503  note  13. 

Notice  of  Hearing,  condemnation  proceedings,  50,  52.  See  also  EMI- 
NENT DOMAIN;  I. ANPOWNERS. 

Notice  to  Property  Owners,  zoning  laws,  impractical,  281  note  33: 
proposed  plan  (Sax.mv  also  O  INSTITUTIONAL  AND 

STATUTORY  PROVISIONS;  LANDONYX!  K< .  PLAN. 

Nova  Scotia,  planning  law  modeled  on  F.nnli-Oi  act,  -m  imtc  _>7.  See  also 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS, 

Nuisances,  abatement.  Fast  I'.irniingham  (  Finland)  scheme,  508  note  20. 
See  also  POLICE  POY\ 

Number,  buildings  to  acre  (England).  503-50};  dwelling  houses  to  acre. 
East  I'.inninuham  (England)  scheme,  507  note  -'(> :  members  of 
planning  commission,  =556-7.  See  also  AREA  LIMITATIONS  AND 

DISTRICTS.  PLANNING  COMMISSION'S. 

Nursery  Structures,  residence  distri <t-  i  N't  \v  York  City),  268.  See  also 
RESIDENTIAL  USES  AND  DISTRICTS. 


INDEX  703 

Object  of,  see  PURPOSE  OF. 

Objections  to  Plan,  see  PLAN. 

"Obstructive  Building"  definition,  "Unhealthy  Areas  Act"  (England)    82 

See  also  REPLOTT1NG;  ZONE  CONDEMNATION 
Obtaining  Land,  see  ACQUISITION.    See  also  LAND 
Occupancy,  Certificates,  see  CERTIFICATES  OF  OCCUPANCY     See 

CONDEMNATION; 


Officers,  Public,  see  ADMINISTRATION 

Officials,  City,  see  ADMINISTRATION.  See  also  CITIES  AND 
TOWNS. 

Ohio,  excess  condemnation,  128,  129;  constitutional  amendment  authoriz- 
ing excess  condemnation,  131,  148;  statute  authorizing  excess  con- 
demnation, 151  ;  East  Cleveland  case,  exclusion  of  tenement  houses 
from  one  and  two  family  residence  districts,  288;  regulation  of 
"premises"  including  vacant  land,  566  note  43;  power  of  city  council 
to  vary  report  of  commission,  568  note  47.  See  also  CITIES  AND 
TOWNS;  CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS; EXCESS  CONDEMNATION;  RESIDENTIAL  USES 
AND  DISTRICTS;  ZONE  REGULATIONS. 

Olmsted,  Fredk.  Law,  criticism  of  procedure  in  condemnation  proceed- 
ings, 50-51.  See  also  EMINENT  DOMAIN. 

One  Family  Houses,  see  RESIDENTIAL  USES  AND  DISTRICTS. 

One  Way  Streets,  traffic  regulations,  183.  See  also  POLICE  POWER- 
STREETS  AND  HIGHWAYS. 

Ontario,  excess  condemnation,  statute,  67  note  10;  Municipal  Act, 
amendment,  265  note  3;  planning  law  not  modeled  on  English  act,' 
510  note  27;  Planning  and  Development  Act,  provisions,  512-513. 
See  also  CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS; EXCESS  CONDEMNATION. 

Open  Spaces,  see  PARKS  AND  PARKWAYS. 

Opinion,  see  PUBLIC  OPINION. 

Opinion  of  Justices,  Massachusetts,  constitutionality  of  exclusion  of 
tenement  from  districts  as  part  of  systematic  zoning,  289.  See  also 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS; 
RESIDENTIAL  USES  AND  DISTRICTS. 

ORDINANCES:     i.  In   General;   2.  Particular  Ordinances. 

Cross-references:  ADMINISTRATION  (5,  6);  AREA  LIMI- 
TATIONS AND  DISTRICTS  (2)  ;  CITIES  AND  TOWNS 
(i,  8);  GERMANY  (6);  HEIGHT  LIMITATIONS  AND  DIS- 
TRICTS (3,  4,  5)  ;  INDUSTRIAL  USES  AND  DISTRICTS 
(2,  3,  4);  NEW  YORK  CITY  (4,  6);  SETBACKS  (i)  ;  ZONE 
REGULATIONS  (3,  4). 

i.  In  General:  setback,  177;  increase  of  nonconformity,  202  note  12; 
nonconformity  of  bulk,  202  note  13,  203;  nonconformity  of  use,  203; 
powers  of  Board  of  Appeals,  204  note  14  (at  p.  207)  ;  segregation 
of  offensive  industries,  215;  exclusion  of  certain  industries  from 
residential  districts,  215;  districting  by  types  of  houses,  217  note  14; 
zone  building  (Germany),  cities  enumerated,  219-227;  height  of 
buildings  (Germany),  221;  number  of  stories  (Germany),  221; 
area  limitations  (Germany),  221;  exclusion  of  use  from  locality  on 
consent  of  property  owners,  legality,  266  note  8;  zoning,  legality, 
284  note  34;  zoning  on  Pacific  Coast,  elaborate  classification,  291; 
zoning,  two  family  house  districts,  291  ;  appearance  of  private 
property  exposed  to  public  view,  403;  outdoor  advertising,  418; 
building,  by  German  states,  451;  planning  by  "local  statutes"  (Prus- 


704  INDEX 

sia),     451-457;     planning     by     "local     statutes"     (Saxony),     457- 
460. 

a.  Particular  Ordinances:  Alameda,  Cal.  (exclusion  of  residences 
from  heavy  manufacturing  districts),  277  and  note  25,  (zoning), 
341-355;  Altona,  Germany  (bulk  zoning),  212;  Anhalt,  Germany 
(painting  of  fagades),  403  note  46,  (building),  421  note  80,  461  note 
24;  Baden  (building),  404  note  49,  421  note  80;  Baltimore  (height 
limitations),  265  and  note  5;  Bavaria  (building),  404  note  49,  421 
note  80,  461  note  24,  (painting  of  facades),  403  note  46;  Berlin 
(zoning),  216;  Chicago  (billboards),  418  note  64;  Cincinnati  (bill- 
boards), 418  note  64;  Cleveland,  Ohio  (planning),  587,  (setbacks), 
280  and  note  31;  Cologne  (building),  262;  Dresden  (replotting), 
84  note  63,  (zoning  by  small  districts),  216;  Diisseldorf  (zoning), 
217,  (building),  250-261 ;  East  Cleveland,  Ohio  (one  and  two  family 
residence  district),  288;  Edmonton  (assessment  and  taxation  on  out- 
lying subdivisions),  41  note  20;  Frankfort,  Germany  (building), 
227-250,  262,  (facades),  403  and  note  45,  (styles  of  architecture), 
400  and  note  36,  (traffic  thoroughfare  regulations),  216,  (zoning), 
213-215;  Hildesheim  (styles  of  architecture),  400  and  note  37; 
Indianapolis  (height  limitations),  265  and  note  5;  Karlsruhe  (regu- 
lation by  streets),  216,  (building),  263;  Lakewood,  Ohio  (bill- 
boards), 419  and  note  68;  Leipsig  (replotting),  84  note  63;  Los 
Angeles  (zoning),  267  and  note  9,  (exclusion  of  outdoor  advertis- 
ing from  residential  districts),  418  and  note  66;  Mayence  (expro- 
priation of  faulty  subdivisions),  85  note  68;  Milwaukee  (families 
per  acre),  277  and  note  24,  (setbacks),  280  and  note  31,  (zoning), 
323-341;  Munich  (building),  264,  (facades),  403  and  note  45;  New 
York  City  (building  zone  resolution),  268-276,  305-323,  (height 
limitations),  402  note  43,  (roof  signs  subject  to  height  and  setback 
regulations),  419  note  67,  (projecting  illuminating  signs),  419  note 
69,  (features  referred  to  commission),  561  and  note  30;  Paris, 
(height  limitations),  402  note  43,  (competition  of  architects),  407 
and  note  57;  Philadelphia  (setback),  177  note  5;  Saxony  (building), 
421  note  79,  461  note  24;  Stuttgart  (regulation  by  streets),  216; 
Toledo  (billboards),  418  note  64;  Vienna  (filing  plan  of  sub- 
division), 84  and  note  64;  White  Plains,  N.  Y.  (exclusion  of  heavy 
industry  from  entire  city),  278  and  note  27;  Wurttemberg  (replot- 
ting), 84  note  62,  63,  (protecting  property  of  historical  or  artistic 
interest),  398  note  27,  401  note  38,  402,  (building),  421  note  80,  461 
notes  24,  26.  27. 

Oregon,  excess  condemnation,  130  note  13,  131  note  19;  statute  authorizing 
excess  condemnation,  151 ;  preservation  of  scenic  beauty  along  state 
highways,  387  note  13  (at  p.  388)  ;  planning  commissions  with  ad- 
visory powers  only,  558  note  26;  segregation  of  business,  trade  or 
callings,  566  note  43.  See  also  RF.AUTY,  PROMOTION'  OF; 
BUSINESS  USES  AND  DISTRICTS:  CONSTITUTIONAL 
AND  STATUTORY  PROVISIONS;  EXCESS  CONDEMNA- 
TION; PLANNING  COMMISSIONS. 

Origin,  excess  condemnation,  65 ;  use  zoning,  210  note  i ;  zoning.  210  and 
note  i.  See  also  EXCESS  CONDEMNATION;  USE  ZONING; 
7n\INTG. 

Ornamental  Features,  building  projections,  see  ENCROACHMENTS. 

Otley  (England)  scheme,  houses  to  acre,  503  note  13. 

OUTDOOR  ADVERTISING:  i.  In  General;  a.  Legislation; 
3.  Regulation  in  General;  4.  On  Private  Property;  5.  In  Public 
Places;  6.  Taxation. 


INDEX  705 

Cross-references:  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS  (3);  ENGLAND  (2,  6);  FRANCE  (4):  GER- 
MANY (4);  LAND  (11)  ;  MASSACHUSETTS  (i) ;  NEW 
YORK  (3);  ORDINANCES  (i);  PARKS  AND  PARKWAYS 
(5);  RECOMMENDATIONS  AND  SUGGESTED  REFORMS 
(16);  TAXATION  (7);  TRANSPORTATION  (2,  7);  UNITED 
STATES  (2). 

1.  In  General:  importance  and  difficulty  of  problem,  407-408. 

2.  Legislation:   constitutional  amendment    (Mass.),  395  and  note  22; 
statutes  tabulated,  636. 

3.  Regulation  in  General :  legality,  392  note  18 ;  Europe,  396 ;  methods 
of   controlling,   410-411;   France,  419-420;    England,   420-421;    Italy, 
420  note  72;  Germany,  421-422;  importance  and  likelihood  of  regu- 
lation   in    United    States,    422;    Advertising    Regulation    Act    1907 
(England),  441-442;  East  Birmingham   (England)   scheme,  508  note 

20. 

4.  On  Private  Property:  billboard  districts   (Los  Angeles),  267  note 
9;   residential  neighborhoods,  412-419;  exclusion  as  business  struc- 
tures from  residential  districts,  418. 

5.  In  Public  Places:  streets,  sandwich  men  or  vehicles,  175;  Massa- 
chusetts Constitutional  Amendment,  395  and  note  22;  parks,  408  and 
note  61 ;  street  cars  and  subways,  408-409;   limitation  of   size  and 
area  covered,  409;  near  ancient  monuments  (England),  440. 

6.  Taxation:  progressive  in  amount  with  size  and  location,  411  and 
note  63. 

Overhangs,  see  ENCROACHMENTS. 

Owner's  Right  to  Repurchase,  excess  condemnation,  131.  See  also 
EXCESS  CONDEMNATION;  LANDOWNERS. 

Ownership,  water  front,  navigable  streams,  170;  municipal,  see  MUNI- 
CIPAL OWNERSHIP;  public,  see  PUBLIC  OWNERSHIP.  See 
also  HARBORS  AND  WATER  FRONT;  RIPARIAN  OWNERS. 

Pacific  Coast,  public  building  districts,  277;  tendency  to  multiply  use  dis- 
tricts, 277,  291.  See  also  DISTRICTS;  USE  LIMITATIONS 
AND  DISTRICTS. 

Painting  of  Buildings,  aesthetic  legislation  (Germany),  403  note  46;  resi- 
dences (Prussia),  473.  See  also  BEAUTY,  PROMOTION  OF. 

Palisades  Interstate  Park  (N.  Y.),  condemnation  of  land,  390  note  15. 
See  also  EMINENT  DOMAIN;  PARKS  AND  PARKWAYS. 

Parapets,  zoning  regulations  (New  York  City),  270.  See  also  ZONE 
REGULATIONS. 

Paris,  covenants  by  purchasers  in  early  deeds  to  build  according  to  state 
plan.  65 ;  building  and  street  line  statutes.  402  note  43.  See  also 
PLAN;  SETBACKS;  STREETS  AND  HIGHWAYS. 

Park  and  Planning  Board,  union  criticized.  562.  See  also  PARKS  AND 
PARKWAYS;  PLANNING  COMMISSIONS. 

Park  Districts,  Kansas  City.  369.    See  also  PARKS  AND  PARKWAYS. 

Parking  Regulations,  vehicles,  183.  See  also  POLICE  POWER;  ZONE 
REGULATIONS. 

PARKS  AND  PARKWAYS:  i.  In  General;  2.  Relation  to  Plan; 
3.  Establishment;  4.  Jurisdiction;  5.  Regulations;  6.  Parkways; 
7.  Park  Strips;  8.  Public  Squares;  9.  Open  Spaces;  10.  Play- 
grounds. 

Cross-references:  BENEFIT  ASSESSMENTS  (3);  EXCESS 
CONDEMNATION  (7)  ;  HEIGHT  LIMITATIONS  AND  DIS- 
TRICTS (4);  LAND  (ii);  MASSACHUSETTS  (5);  NEW 


706  INDEX 

YORK  (3)  ;  NEW  YORK  CITY  (13) ;  OUTDOOR  ADVERTIS- 
ING (5);  PLAN  (5);  RECOMMENDATIONS  AND  SUG- 
GESTED REFORMS  (14,  16,  19);  SETBACKS  (4);  STREETS 
AND  HIGHWAYS  (8). 

i.  In  General:  effect  on  private  use  of  land,  n;  influence  on  land 
values,  369-371. 

a.  Relation  to  Plan:  how  far  city  planning  may  go,  4;  laying  out, 
function  of  state  planning,  8;  part  of  city  plan,  27;  acceptance  of 
park  spaces  •  conditional  on  conformity  to  city  plan,  28;  reserved 
spaces,  28;  reservation  of  water  front,  171;  laying  out  made  feasible 
by  use  zoning,  200;  proposed  port  zoning  in  New  York,  278  note  28; 
along  banks  of  streams,  legality,  elimination  of  menace  to  public 
health,  383  and  note  7;  not  a  part  of  plan  (Prussia),  452;  setting 
land  apart  for,  East  Birmingham  (England)  scheme,  508  note  20; 
part  of  prescribed  plan  (France),  515;  part  of  a  possible  state 
regional  plan,  544;  location,  reference  to  planning  commissions  (New 
York),  583;  alteration  of  location  (Penn.),  588. 

3.  Establishment:  excess  condemnation,  61,   130;  benefit  assessments 
for  construction,  369-371. 

4.  Jurisdiction:  Metropolitan  Park  Commission,  Massachusetts,  547-8; 
planning   commissions    generally,    recommendation,   561-2;    planning 
commission  (Cleveland.  Ohio),  587. 

5.  Regulations:  building  lines  and  other  restrictions  on  lands  about, 
387  note  13;  business  structures  about,  prohibited   (St.  Louis),  387 
note   13   (at  p.  388)  ;  advertisements  in,  408  and  note  61 ;  outdoor 
advertising  controlled  in  England,  421. 

6.  Parkways:  laying  out,  legality,  383;  jurisdiction  of  planning  com- 
mission,  561-2;    location,   reference  to   planning   commission    (New 
York),  583. 

7.  Park  Strips:  along  highways,  Clinton  Avenue  case    (New  York), 
390  note  15;  on  streets,  East  Birmingham   (England)    scheme,  507 
note  20. 

8.  Public  Squares:  excess  condemnation,  130;  location  and  extent,  part 
of  prescribed  plan  (France),  515;  jurisdiction  of  planning  commis- 
sion, 561-2;  location,  reference  to  planning  commission  (New  York), 
583. 

9.  Open  Spaces:  part  of  city  plan,  27;  Sweden,  462;  Saxony,  477;  part 
of  prescribed  plan   (France),  515;  designated  for  other  use  under 
plan,    confirmation    by    Parliament    necessary    (England),    526-527; 
jurisdiction  of   planning  commission,   561-2;   location,   reference   to 
planning  commission   (New  York),  583. 

10.  Playgrounds:  excess  condemnation,  130;  laying  out  made  feasible 
by  use  zoning,  200;  1918  amendment  of  Prussian  law  of  1875.  452; 
Saxony,  477;   setting  land  apart   for   East   Birmingham    (England) 
scheme,  508  note  20;  part  of  prescribed  plan   (France),  515;  juris- 
diction of  planning  commission,  561-2;  location,  reference  to  plan- 
ning commission  (New  York),  583. 

Parliament  (England),  sectional  city  planning  by  act  of,  499.     See  also 

l-:\r,LA\I>:   PLAN;  PLANNING. 
Part  of  Tract,  taking,  measure  of  damages,  48.     See  also  EMINENT 

DOMAIN. 
Partial  Planning,  function  and  advantages,  28;  open  to  criticism,  28.    See 

also  PLANNING. 

Partial  Zoning,  disadvantages,  205  note  14  (8).    See  also  ZONING. 
Party  Walls,  compulsory  joint  improvement,  analogy  to  replottinp.   i.n 

S«r  also  REPLOTTING. 


INDEX  707 

Passaic  River,  menace  to  public  health,  384  note  7.  See  also  EMINENT 
DOMAIN;  PARKS  AND  PARKWAYS;  POLICE  POWER. 

Passengers,  transportation  on  surface  lines,  liability  of  company  to  abut- 
ting landowners,  176.  See  also  LANDOWNERS;  TRANSPORTA- 
TION. 

Payment,  benefit  assessments  in  instalments,  365;  cost  of  executing  plan 
(England),  504-505 ;  cost  of  streets,  East  Birmingham  (England) 
scheme,  506  note  20;  of  war  damages  (France),  514  note  34.  See 
also  DEVASTATED  REGIONS;  FRANCE.  See  also  BENEFIT 
ASSESSMENTS;  PLAN;  STREETS  AND  HIGHWAYS. 

Penalties,  see  ADMINISTRATION. 

Pennsylvania,  encroachments  on  mapped  streets,  30;  excess  condemna- 
tion, constitutionality,  130  note  12,  131  note  19,  135;  establishment 
of  setbacks  without  compensation,  177  note  5 ;  metropolitan  plan- 
ning authority  for  suburban  area,  547;  expert  assistance  in  plan- 
ning to  local  communities,  553  note  17;  General  Plan  Act,  587-8; 
planning  provision  of  State  Highway  Act,  588;  Planning  Act  for 
Third  Class  Cities,  589;  Suburban  Metropolitan  Planning  Act,  594- 
597;  State  Planning  Bureau  Act,  604-5.  See  also  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS;  ENCROACH- 
MENTS; EXCESS  CONDEMNATION;  PLANNING;  SET- 
BACKS; STREETS  AND  HIGHWAYS. 

Period  in  Force,  plan,  see  PLAN. 

Permanent  Commissions,  see  PLANNING  COMMISSIONS. 

Permanent  Improvements,  financing  by  city,  359-360.  See  also  CITIES 
AND  TOWNS;  PUBLIC  IMPROVEMENTS. 

Permission  to  Locate,  improvements  in  mapped  streets,  34.  See  also 
BUILDING  PERMITS;  STREETS  AND  HIGHWAYS. 

Permissive  Planning  Statutes,  see  CONSTITUTIONAL  AND  STAT- 
UTORY PROVISIONS. 

Permit,  Building,  see  BUILDING  PERMITS. 

Personal  Property  Tax,  local  taxation  in  United  States,  358.  See  also 
TAXATION;  UNITED  STATES. 

Philadelphia,  establishment  of  setbacks  without  compensation,  177  note 
5 ;  self-supporting  enterprises,  debt  limit,  361  note  3.  See  also 
CITIES  AND  TOWNS;  SETBACKS. 

Picturesque  Places,  plans  required  (France),  515.  See  also  BEAUTY, 
PROMOTION  OF. 

Pier  Head  Lines,  see  HARBORS  AND  WATER  FRONT. 

Piers,  see  HARBORS  AND  WATER  FRONT. 

Pilotage,  national  and  state  regulation,  538.  See  also  STATES ;  UNITED 
STATES  GOVERNMENT. 

Place  des  Vosges,  establishment  by  Henry  IV,  65.  See  also  EXCESS 
CONDEMNATION;  STREETS  AND  HIGHWAYS. 

PLAN  (CITY):  i.  In  General;  2.  Preparation;  3.  Adoption; 
4.  Amendment;  5.  Content;  6.  Duration;  7.  Enforcement. 
Cross-references:  ADMINISTRATION  (5);  AREA  LIMITA- 
TIONS AND  DISTRICTS  (4);  BEAUTY,  PROMOTION  OF 
(ii.  12);  BOARDS  OF  APPEALS  (i)  ;  BULK  ZONING  (i)  ; 
CITIES  AND  TOWNS  (i,  3)  ;  EMINENT  DOMAIN  (6)  ;  ENG- 
LAND (3);  GERMANY  (5);  HARBORS  AND  WATER 
FRONT  (3)  ;  LAND  (4,  7) ;  LANDOWNERS  (3,  4)  ;  MASSA- 
CHUSETTS (7)  ;  NEW  JERSEY  (2)  ;  NEW  YORK  (i)  ;  NEW 
YORK  CITY  (3,  5)  ;  PARKS  AND  PARKWAYS  (2.  8.  9,  10)  ; 
PLANNING  COMMISSIONS  (2)  ;  PUBLIC  UTILITIES  (i) ; 
RECOMMENDATIONS  AND  SUGGESTED  REFORMS  (2,  7)  ; 


;o8  INDEX 

SETBACKS  (i) ;  STREETS  AND  HIGHWAYS  (3,  14) ;  TAXA- 
TION (i);  TRANSPORTATION  (i,  5);  ZONE  REGULA- 
TIONS (i);  ZONING  (i). 

i.  In  General:  necessity,  27;  relation  of  public  utilities  to,  161 ;  effect 
of  incidence  of  taxation  on,  358;  provision  of  Saxon  law,  476;  effect 
(England),  507-509;  effect  on  rights  of  abutting  landowners 
(France),  534;  regional  for  United  States,  advantages  and  difficul- 
ties, advisory  suggested,  541 ;  specific,  for  specific  improvements 
(Minnesota),  577. 

a.  Preparation:  of  plan  of  building  development  by  private  interests, 
see  LAND;  survey,  details,  202,  205  note  14  (6);  New  York  City 
zoning  plan,  271-272;  essential  provisions  planning  law,  444;  Italy, 
446,  465;  Prussia,  452;  Saxony,  479;  cost  (Canada),  512;  manda- 
tory (France),  515,  529,  533;  cost  (France),  516,  530;  mandatory 
(England),  499,  501,  527;  Town  Planning  Acts,  1909-1919  (Eng- 
land), 519-521;  default,  mandamus  (England),  526;  by  commis- 
sion, report  to  city  council,  567;  Minnesota,  577;  New  Jersey,  581; 
planning  commission  (New  York),  582;  by  planning  commission 
(Geveland,  O.),  587;  survey  of  metropolitan  district  (proposed 
Massachusetts  law),  590;  by  Port  Authority  for  port  of  New  York, 
600 ;  statutes  tabulated,  632. 

3.  Adoption:     (In  General)  essential  provisions  of  planning  law,  444; 
effect   on   land,   453 ;    report   to   city   council,   action    thereon,   567 ; 
statutes  tabulated,  632;   (European  Practice)   adoption,  promulga- 
tion, effect   on   private  property    (Italy),   445,  446,  465;   objections, 
adoption,  effect  on  private  lands  (Prussia),  453,  469;  adoption,  pro- 
mulgation,  effect   on   private   lands    (Sweden),   462;    Saxony,   479; 
adoption,  mandatory  (England),  499,  501,  519-521;  effect  on  subse- 
quent owners.   East   Birmingham    (England)    scheme,  507  note  20; 
cost     (Canada),     512;     inquest,     adoption     effect    on     landowner's 
rights  (France),  517,  534- 

4.  Amendment:  difficulty  in   securing,  power  of   property  owners  to 
prevent,  procedure,   568;   reference   to  planning   commission    (New 
York),  583. 

5.  Content:   general   discussion,   27;   division   of   city  into  zones,   205 
note  14  (6)  ;  Prussia,  452;  Saxony,  459,  477;  Sweden,  462;  England, 
502-503,    521-522,    528-529;    France,    515,    529;    streets    and    parks 
(Penn.),    588;     plan     for     metropolitan     district     under     proposed 
Massachusetts  law,  590. 

6.  Duration:   Italy,  446,  465;   Prussia,  455.     Term  of   office  of  plan- 
ning commissioners,  see  PLANNING  COMMISSIONS. 

7.  Enforcement:    general    discussion,    28-30;    provisions    essential    in 
planning  law,  444;   protection    from  encroachments,  28-39;   sugges- 
tions, 34;  protection   (Conn.),  36  note  17;  function  of  board  of  ap- 
peals, 37-39;  against  transportation  company,   164;  New  York  City, 
321-322;    Milwaukee,    338;    Alameda     (Cal.),    352;     Prussia,    455; 
Sweden,  462;  Saxony,  482;  cost  (England),  504-505;  cost  (Canada), 
512;  default,  mandamus   (England),  526;  by  Metropolitan  Planning 
Board  under  proposed  Massachusetts   law,  591-2. 

Planned  Streets,  see  STREETS  AND  HIGHWAYS. 

PLANNING:  i.  In  General;  2.  City;  3.  Town;  4.  Village;  5.  Neigh- 
borhood; 6.  County;  7.  State;  8.  Interstate;  9.  National;  10.  In- 
ternational; ii.  Metropolitan;  12.  Regional;  13.  Rural. 

.-references:      AHMIXISTRAT!  1  IMITA- 

TIONS AND  DISTRICTS  (4);  CITIKS  AND  TOWNS  (i,  5); 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS  (i,  4); 


INDEX  709 

DOMAIN  (I>  3>  }  ENGLAND  (2);  HARBORS 
AND  WATER  FRONT  (3);  HEIGHT  LIMITATIONS  AND 
DISTRICTS  (i);  LAND  (i,  3,  4,  9);  MASSACHUSETTS  (8); 
ORDINANCES  (i)  ;  PARKS  AND  PARKWAYS  (2);  PLAN- 
NING COMMISSIONS  (i,  3);  POLICE  POWER  (i,  2)  ;  PUB- 
LIC IMPROVEMENTS  (i)  ;  RECOMMENDATIONS  AND  SUG- 
GESTED REFORMS  (i,  2,  19);  RESIDENTIAL  USES  AND 
DISTRICTS  (3);  STATE  (2,  3,  4);  TRANSPORTATION  (i, 
GOVERNMENT  0.  3);  ZONE  CON-' 


1.  In  General:  partial  compared  with  comprehensive,  28;  jurisdiction 
and    function   of    state,    543,    545;    supervision   by   state,    550-2    and 
note  16. 

2.  City:  definition,  i;  distinguished   from  city  construction,  4;   scope, 
general  co-ordination  rather  than  determination  of  details,  4;  rela- 
tion to  housing,  5;  relation  to  rural  planning,  6;  relation  to  county 
planning,  7;  relation  to  interstate  or  international  planning,  9;  city 
planning  law,  definition,    10;   relation  to  federal   power  over  inter- 
state transportation,  540;  beyond  city  limits,  method  of  giving  con- 
trol to  city  criticized,  546;  city  planning  administration.     See  AD- 
MINISTRATION. 

3.  Town:   definition,    i;   Town   Planning  Acts    (Canada),  265;   Town 
Planning  Acts,  1909  and  1919  (England),  518-529. 

4.  Village:  law  applicable,  2. 

5.  Neighborhood:  definition,  purpose,  execution,  205. 

6.  County:    definition,    7;    relation    to    city    planning,    7;    relation    to 
regional  planning,  7;  New  Jersey,  603. 

7.  State:  definition,  7;  relation  to  regional  planning,  7;  scope  dependent 
on    federal    constitution,    8;    distinguished    from    national    planning, 

8,  9;  harbors,  state's  power  subject  to  federal  regulations,  540. 

8.  Interstate:  definition,  9;  relation  to  city  and  regional  planning,  9; 
interstate  metropolitan  planning,  see  infra  this  title,  METROPOLI- 
TAN PLANNING.     See  also  BRIDGES. 

9.  National:  definition,  8;  distinguished  from  state  planning,  8. 

10.  International:  definition,  9;  relation  to  city  and  regional  planning, 

9.  See  also  BRIDGES. 

11.  Metropolitan:   definition,   7,  545;   relation  to  regional  planning,  7; 
difficulties,  545  ;  authority  for  areas  larger  than  and  including  cities, 
reform  suggested,  547;  authority  for  suburban  area  (Pennsylvania), 
547  ;  interstate,  various  devices,  single  permanent  authority  suggested, 
548-550;   Metropolitan  Planning  Act    (proposed)    (Mass.),  589-594; 
Metropolitan  Planning  Law   (Penn.),  594-597. 

12.  Regional:    purpose    and    scope,   4;    relation    to    state    planning,    7; 
relation  to  county  planning,  7;  relation  to  metropolitan  planning,  7; 
relation  to  interstate  or  international  planning,  9;  England,  509-510; 
United  States,  powers  and  possibilities,  541;  state,  powers  and  pos- 
sibilities, 543,  544. 

13.  Rural:  relation  to  city  planning,  6. 

Planning  Acts,  Canada,  265;  Holland,  495-4975  England,  499-510;  France, 
S13-51?,  529-534;  Ontario,  512-513;  Minnesota,  576-8;  Pennsylvania, 
589.  See  also  CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS ;  PLANNING  LAW. 

Planning  Administration,  see  ADMINISTRATION. 

Planning  Authority,  see  ADMINISTRATION. 

Planning  Board  of  Brookline,  Mass.,  financial  results  of  setback,  182. 
See  also  SETBACKS. 


710  INDEX 

PLANNING  COMMISSIONS:  i.  In  General;  a.  Membership; 
3.  Powers  and  Duties;  4.  Expenses;  5.  Particular  Commissions. 
See  also  LOCAL  GOVERNMENTS. 

Cross-references:  ADMINISTRATION  (3,4);  BEAUTY,  PRO- 
MOTION OF  (7,  8)  ;  CITIES  AND  TOWNS  (3,  4) ;  HARBORS 
AND  WATER  FRONT  (4,  6,  7,  8);  HEIGHT  LIMITATIONS 
AND  DISTRICTS  (i);  MASSACHUSETTS  (8);  NEW  JER- 
SEY (2);  NEW  YORK  (i);  NEW  YORK  CITY  (3);  PARKS 
AND  PARKWAYS  (2,  4,  6,  8,  9,  10) ;  PLAN  (2,  4,  7) ;  PLAN- 
NING (n);  PUBLIC  IMPROVEMENTS  (2);  RECOMMENDA- 
TIONS AND  SUGGESTED  REFORMS  (i.  19);  REPLOTT1XG 
(i);  SETBACKS  (i);  STATE  (3,  4);  STREETS  AND  HIGH- 
WAYS (2)  ;  TRANSPORTATION  (2,  5)  ;  USE  LIMITATIONS 
AND  DISTRICTS  (i). 

i.  In  General:  definition,  204  note  14;  second  step  in  development  of 
planning  activities  in  United  States,  553-4;  temporary  and  perma- 
nent, discussion,  554 ;  planning  and  park  boards,  union  criticized,  562 ; 
planning  and  art  commissions,  union  criticized,  565 ;  statutes  tabu- 
lated, 636-638. 

a.  Membership:  for  replotting  under  Lex  Adickes,  109;  for  prepara- 
tion of  New  York  City  Plan,  principle  of  selection,  271 ;  Canada, 
511;  France,  516;  appointment  under  special  law  or  city's  gem  ml 
powers,  554-5 ;  appointment,  various  methods,  555-6 ;  number,  quali- 
fications, ex  officio  and  lay,  556-7;  term  of  office,  overlapping  to 
secure  continuity,  557;  personnel  term  of  service  (Minneapolis), 
5/6-7;  qualifications,  appointment,  term  of  office  (N.  J.),  578;  ap- 
pointment, qualifications,  term  of  office  (N.  Y.),  581;  appointment, 
(Cleveland,  O.),  587. 

3.  Powers  and  Duties:  replotting,  86  note  71 ;  general  (Canada),  511 ; 
general    (France),   516;    advisory   or   administrative,    555;   general, 
557-563;  advisory  powers  only,  influence  on  community,  558;  advice 
a    prerequisite    to    city    action,    558-9;    advice,    over    ruling   by   city 
council,   559;    over   city   council's    action   absolute,    559-560;    report 
where  powers  advisory  only,  scope  discretionary,  560;  report  where 
prerequisite  to  city  action,  scope  limited  to  vital  matters,  desirability 
of  map,  560-2;  matters  properly  within  jurisdiction,  561;  alteration 
of  features  referred  to  commission  properly  within  its  jurisdiction, 
562 ;  should  be  limited  to  planning,  562-3 ;  preparation  of  plan  and 
report  to  city  council,  567 ;  report  of  plan  to  city  and  action  thereon, 
567 ;    report   on   proposed   amendments   to   city   plan,    568 ;   general 
(Minneapolis),  576-7;  designs  of  public  improvements,  plats   (Min- 
nesota), 577-8;  general  (N.  Y.),  582;  employment  of  experts,  582; 
report  on  matters  referred  to  (N.  Y.),  583;  approval  of  plats  be- 
fore recording  (N.  Y.),  583-4;  general  (Cleveland,  O.),  587. 

4.  Expenses:  Canada,  511;  New  Jersey,  580;  New  York,  582;  Massa- 
chusetts  (under  proposed  metropolitan  planning  law),  593. 

5.  Particular  Commissions:   "Departmental  Commission  for  the  Plan- 
ning of  Cities  and   Villages,"  personnel,  powers,  duties    (France), 
531;    Superior    Planning   Commission,   personnel,   duties    (France), 
531-532;    Commission   of    Conservation    (Canada),    542;    state,    for 
Boston  metropolitan  district  (Mass.),  547-548;  Harbor  Commission 
(N.  J.),  550  note   16;  proposed  Metropolitan   Planning  Board,  ap- 
pointment, powers,  duti<  .),  589-590;  Suburban   Metropolitan 
Planning   Commission,  appointment,   qualifications,   terms   of  office, 
powers  and  duties  (Penn.),  595-597;  Port  Authority  for  New  York 
Harbor  personnel,  how  chosen,  powers  and  duties,  598-603;  County 


INDEX  7n 

Plan  Commission,  function  (N.  J.),  603;  State  Capitol  Planning 
Commission,  personnel,  appointment,  terms  of  office,  powers  and 
duties  (Cal.),  603-4. 

Planning  Executive,  see  ADMINISTRATION. 

Planning  Jurisdiction,  see  ADMINISTRATION. 

Planning  Law,  essential  provisions,  444;  history  (England),  498-510; 
mandatory  (France),  499  note  3;  mandatory  (England),  499-501; 
particular  laws,  see  PLANNING  ACTS.  See  also  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS. 

Planning  Powers,  see  POWERS. 

Planting  Shade  Trees,  legality,  382-383  and  note  6.  See  also  BEAUTY, 
PROMOTION  OF. 

Plats,  control  by  planning  commission  (Minn.),  578;  approval  by  plan- 
ning commission  essential  to  recording  (N.  Y.),  583-4;  approval  by 
city  planning  commission  essential  to  recording  (Penn.),  589;  ap- 
proval essential  to  recording,  statutes  tabulated,  631-2.  See  also 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS; 
PLANNING  COMMISSIONS. 

Playgrounds,  see  PARKS  AND   PARKWAYS. 

Pleading,  eminent  domain,  necessity  of  alleging  specific  public  use,  55-57. 
See  also  EMINENT  DOMAIN;  RECOMMENDATIONS  AND 
SUGGESTED  REFORMS. 

Pleasure  Resorts,  formulation  of  plans  (France),  515.  See  also  CON- 
STITUTIONAL AND  STATUTORY  PROVISIONS;  PLAN. 

Pleasure  Vehicles,  exclusive  use  of  specified  streets,  183.  See  also 
AUTOMOBILES;  POLICE  POWER;  STREETS  AND  HIGH- 
WAYS. 

Plotting,  building  land  (Europe),  84;  adjacent  land,  excess  condemna- 
tion, 133.  See  also  EXCESS  CONDEMNATION. 

POLICE  POWER:  i.  In  General;  2.  Zoning;  3.  Beauty,  Promotion 
of;  4.  Setbacks;  5.  Replotting. 

Cross-references:  BEAUTY,  PROMOTION  OF  (4);  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS  (3)  ;  EMI- 
NENT DOMAIN  (i,  3);  HEIGHT  LIMITATIONS  AND  DIS- 
TRICTS (2)  ;  LAND  (11)  ;  NEW  YORK  (i)  ;  RECOMMENDA- 
TIONS AND  SUGGESTED  REFORMS  (6,  15)  ;  REPLOTTING 
(2);  SETBACKS  (3);  STREETS  AND  HIGHWAYS  (12); 
UNITED  STATES  (2)  ;  ZONING  (2). 

1.  In   General:   fundamental   in  city  planning,   13;   definition,    17;  not 
affected  by  5th  and    I4th  Amendments  to  United   States   Constitu- 
tion, 18;  as  affected  by  usage  and  public  opinion,  19;  as  affected  by 
local  conditions,   20 ;    distinguished   from   eminent   domain,   25 ;   ex- 
tends to  public  needs  deemed  such  by  public  opinion,  147,  148;  traffic 
regulation,  183. 

2.  Zoning:   only  practical  method,  204  note   14   (3),  280;   application 
to   specific   planning  activities,  204  note   14    (4)  ;   judicial  decisions, 
287  note  34 ;  East  Cleveland  case,  289. 

3.  Beauty,  Promotion  of:  general  discussion,   391-395;  constitutional 
amendments,  394-395 ;  proposed  constitutional  amendment,  395  note 
22   (at  p.  396)  ;  European  practice,  396  and  note  23. 

4.  Setbacks:  establishment,  177  note  5. 

5.  Replotting:  compulsory,  63,  64;  advantages,  85 ;  constitutionality  in 
United     States,     discussion,     142;     compulsory     joint     improvement 
analogous  to  replotting,   143. 

Police,  Traffic,  at  congested  corners,  regulations,  183.  See  also  STREETS 
AND  HIGHWAYS. 


7i3  INDEX 

Population,  Distribution  of,  function  of  state  planning,  8;  relation  to 
possible  regional  planning  by  United  States,  541.  See  also  PLAN- 
NING; STATES;  UNITED  STATES  GOVERNMENT. 

Port  Authority,  see  HARBORS   AM)   \\ATER  FRO.N 

Port  Zoning  in  New  York,  suggestions,  278  note  28.  See  also  HAR- 
I'.uKS  AND  \\ATER  FRONT;  ZONING. 

Porticos,  encroachments,  allowance  and  removal,  175.  See  also  EN- 
CROACHMENTS; ZONE  REGULATIONS. 

Portugal,  legislation  for  promotion  of  beauty,  396  note  24.  See  also 
BEAUTY,  PROMOTION  or. 

Post  Offices,  planning  powers  of  United  States,  536;  federal  control  of 
subway  construction  under  New  York  City  post  offices,  536.  See 
also  UNITED  STATES  GOVERNMENT. 

Post  Roads,  planning  power  of  United  States,  9.  See  also  STREETS 
AND  HIGHWAYS;  UNITED  STATES  GOVERNMENT. 

Posters,  see  OUTDOOR  ADVERTISING. 

Power  to  Condemn  Land,  see  EMINENT  DOMAIN. 

Power  to  Regulate,  see  REGULATIONS. 

Powers  of,  art  commission,  see  BEAUTY.  PROMOTION  OF;  Boards 
of  Appeals,  see  BOARDS  OF  APPEALS;  cities,  see  CITIES  AND 
TOWNS;  communes,  see  COMMUNES;  District  of  Columbia,  see 
DISTRICT  OF  COLUMBIA;  federal  government,  see  UNITED 
STATES  GOVERNMENT;  local  governments,  see  LOCAL  GOV- 
ERNMENTS; Ministry  of  Health  (England),  see  MINISTRY 
OF  HEALTH;  New  York  City,  see  NEW  YORK  CITY;  plan- 
ning commission,  see  PLANNING  COMMISSIONS;  state  govern- 
ment, see  STATES;  United  States,  see  UNITED  STATES  GOV- 
ERNMENT. See  also  ADMINISTRATION;  CONTROL. 

Practice,  Zoning,  importance  of  uniformity,  272  note  17.  See  also  PLAN- 
Nl.\(i;  /.(  »NL\('i. 

Preliminary  Establishment  of  Utility,  expropriation  (France),  91.  See 
also  EMINENT  DOMAIN. 

Preliminary  Survey,  see  PLAN. 

Premises,  existing,  use  in,  see  NONCONFORMING  USES. 

Preservation,  historic  or  artistic  structures  (Germany),  403-405;  character 
of  special  localities  (Germany).  405.  See  also  BEAUTY,  PRO- 
MOTION OF;  BULK  ZONING;  USE  ZONING;  ZON- 
ING. 

Presumption,  validity  of  statutes,  21,  22;  reasonableness  of  zoning  regu- 
lations from  right  to  appeal,  572  note  52;  correctness  of  decision  of 
Board  of  Appeals.  575.  See  also  APPEAL;  BOARDS  OF  AP- 
PEALS; CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS; ZONE  REGULATIONS. 

Prevention,  encroachments  on  city  plan,  28-39.  See  also  ENCROACH- 
MKNTS;  PLAN. 

Prince  Edward  Island,  planning  law  modeled  on  English  Act,  510  note 
J7-  See  also  CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS. 

Principles  of  Zoning,  statement  (Bassett),  204  note  14;  importance  of, 
recognition  of,  272  note  17.  See  also  ZONING. 

Private  Business,  sec  BUSINESS. 

Private  Garages,  see  GARA* 

Private  Interests,  land  developments,  plans  required  (France),  515.  5.VV 
See  also  CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS; LAND;  LANDOWNERS;  PLAN. 

Private  Lands,  see  LAND. 


INDEX  713 

Private  Property,  regulation  under  police  power,  to  promote  beauty,  pro- 
posed constitutional  amendment,  395  note  22  (at  p.  396)  ;  expropria- 
tion for  promotion  of  beauty  (Germany),  400  note  34;  outdoor 
advertising  on,  410-411.  See  also  BEAUTY,  PROMOTION  OF: 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS: 
EMINENT  DOMAIN;  OUTDOOR  ADVERTISING. 

Private  Property  Rights,  protection,  13.  See  also  CONSTITUTIONAL 
AND  STATUTORY  PROVISIONS. 

Private  Sale,  purchase  of  land  by  German  cities,  to  secure  increment  of 
value,  374  note  23.  See  al-so  TAXATION. 

Prizes  for  most  artistic  buildings  (France),  407.  See  also  BEAUTY, 
PROMOTION  OF. 

Procedure,  see  ADMINISTRATION. 

Prohibition,  see  RESTRICTIONS. 

Profit  to  City,  result  of  excess  condemnation,  130;  effect  on  constitu- 
tionality of  excess  condemnation,  138.  See  also  EXCESS  CON- 
DEMNATION. 

Progressive  Tax,  constitutionality,  375  note  25  (at  p.  378)  ;  outdoor  ad- 
vertising, 411  note  63  (at  pp.  417,  418).  See  also  OUTDOOR  AD- 
VERTISING; TAXATION. 

Projections,  ornamental  features,  402  note  43;  after  adoption  of  plan 
(Prussia),  454-  See  also  EMINENT  DOMAIN;  ENCROACH- 
MENTS; ZONE  REGULATIONS. 

Promotion  of  Beauty,  see  BEAUTY,  PROMOTION  OF. 

Promulgation  of  Plan,  see  PLAN. 

Property,  definition,  eminent  domain,  15 ;  municipal,  source  of  revenue 
to  city,  357-358;  purchase  by  city  subject  to  mortgage,  avoidance 
of  debt  limit,  362 ;  purchase  by  city  on  instalment  plan,  avoidance 
of  debt  limit,  362.  See  also  CITIES  AND  TOWNS;  EMINENT 
DOMAIN. 

Property  Owners,  see  LANDOWNERS. 

Property  Rights,  protection  in  both  federal  and  state  constitutions,  dupli- 
cation cause  of  delay,  45.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS. 

Property  Tax,  local  taxation  in  United  States,  358.  See  also  TAXA- 
TION. 

Proposal  of  Plans,  by  local  authorities  or  by  landowners  (Saxony),  459. 
See  also  LANDOWNERS;  PLAN. 

"Protected  Districts,"  use  zoning  (Germany),  211.  See  also  DIS- 
TRICTS; USE  ZONING. 

Protection,  art  treasures  in  France,  396-399;  places  and  objects  of  historic 
and  artistic  interest,  French  law,  423-432;  private  property  rights, 
13;  property  rights  in  both  federal  and  state  constitutions,  duplica- 
tion cause  of  delay,  45;  plan,  see  PLAN.  See  also  BEAUTY, 
PROMOTION  OF;  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS;  FRANCE. 

Protection  of  Law,  Equal,  see  EQUAL  PROTECTION  OF  LAW. 

Providence  (R.  I.),  statute  authorizing  excess  condemnation,  159;  ap- 
pointment of  planning  commission  under  city's  general  powers,  555 
note  21.  See  also  CITIES  AND  TOWNS;  EXCESS  CONDEM- 
NATION; PLANNING  COMMISSIONS. 

Provisions,  Constitutional  and  Statutory,  see  CONSTITUTIONAL 
AND  STATUTORY  PROVISIONS. 

Prussia,  power  of  cities  to  condemn  land,  57  note  20 ;  excess  condemna- 
tion, statutes,  67  note  10;  replotting  statutes,  87,  105  and  note  90; 
use  zoning,  215-216;  bulk  zoning  sustained  by  courts,  216;  Housing 


714  INDEX 

Law  1918,  220  note  21 ;  city  planning  or  Building  Line  Statute,  no 
disfigurement  allowed,  401 ;  planning  jurisdiction  in  state  and  local 
authorities,  449;  planning  law  of  1875  as  amended  in  1918,  451-457; 
advantages  and  disadvantages  of  control  over  new  building,  456-457; 
Street  and  Building  Line  Law  of  1875  and  Housing  Law  of  1918, 
466-474-  See  also  ADMINISTRATION;  BEAUTY,  PROMO- 
TION OF;  BULK  ZONING;  CONSTITUTIONAL  AND  STAT- 
UTORY PROVISIONS;  EMINENT  DOMAIN;  EXCESS 
CONDEMNATION;  HOUSING;  REPLOTTING;  USE  ZON- 
ING. 

Public,  rights  in  streets,  173-175-  See  also  STREETS  AND  HIGH- 
WAYS. 

Public  Building  Districts.  Pacific  Coast,  277.     See  also  DISTRICTS. 

Public  Buildings,  effect  on  private  use  of  land,  n;  part  of  city  plan,  27; 
spaces  reserved,  28;  construction,  excess  condemnation,  61,  130; 
residence  districts  (New  York  City),  268;  sites,  part  of  prescribed 
plan  (France),  515;  commission's  powers,  561-2;  design,  report  by 
commission  to  city  council  (New  Jersey),  580;  location,  reference 
to  planning  commission  (New  York),  583;  within  jurisdiction  of 
planning  commission  (Cleveland,  O.),  587.  See  also  BEAUTY, 
PROMOTION  OF;  CITIES  AND  TOWNS;  EXCESS  CON- 
DEMNATION; LAND;  PLAN;  PLANNING  COMMISSIONS; 
RESIDENTIAL  USES  AND  DISTRICTS. 

Public  Garages,  see  GARAGES. 

Public  Health,  destruction  of  property  injurious  to,  as  a  taking  for  public 
use,  15.  See  also  EMINENT  DOMAIN;  POLICE  POWER. 

PUBLIC  IMPROVEMENTS:  i.  In  General;  a.  Jurisdiction  of 
Planning  Commission;  3.  Cost  and  Payment. 
Cross-references:  BEAUTY,  PROMOTION  OF  (8);  BENEFIT 
ASSESSMENTS  (3,6) ;  CITIES  AND  TOWNS  (7) ;  HARBORS 
AND  WATER  FRONT  (3,  4);  PLAN  (i);  PLANNING  COM- 
MISSIONS (3);  RECOMMENDATIONS  AND  SUGGESTED 
REFORMS  (3,  4,  13,  14,  19)  I  TAXATION  (4). 

1.  In   General:   excess  condemnation,  61 ;   feasible  under  use  zoning, 
200;  by  United  States,  possibilities  of  regional  planning,  541. 

2.  Jurisdiction  of  Planning  Commissions:  grant  of  powers  to  com- 
mission, phrasing  open  to  criticism,  562;  reference  to  planning  com- 
mission (N.  J.),  580. 

3.  Cost  and    Payment:   increased   by   legal   restrictions,  43;   met   by 
local  assessment  or  increment  tax,  138,  371  and  note  18;  extent  and 
difficulty  of  financing,  357,  359-360;   financing  so  as  to  avoid  debt 
limit,   362;   limiting  amount  of   assessments,   364;    limiting   area  of 
assessment,   367-369;   payment  by   abutter    (Prussia),  455;   payment 
by  government  and  landowner   (England),  504-505. 

Public  Lands,  condemnation  for  a  different  public  use  than  the  existing 
one,  58.  See  also  EMINENT  DOMAIN. 

Public  Management,  of  public  utilities,  167.  See  also  CITIES  AND 
TOWNS;  PUBLIC  UTILITIES. 

Public  Markets,  Swedish  planning  law,  462.  See  also  CITIES  AND 
TOWNS. 

Public  Officers,  see  ADMINISTRATION. 

Public  Open  Spaces,  see  PARKS  AND  PARKWAYS. 

Public  Opinion,  relation  to  police  power,  19;  effect  on  right  to  compensa- 
tion for  invasion  of  property  rights.  25 ;  as  to  public  need  of  excess 
condemnation,  zone  condemnation  and  replotting.  importance,  147- 
148.  See  also  EMINENT  DOMAIN;  EXCESS  CONDEMNA- 


INDEX  715 

TION;  POLICE  POWER;   REPLOTTING;   ZONE  CONDEM- 

.  NATION. 

Public  Ownership  as  basis  of  right  of  public  to  plan,  n.  See  also 
^MUNICIPAL  OWNERSHIP. 

Public  Places,  disfigurement,  aesthetic  legislation  (Germany).  40-1-405. 
See  also  BEAUTY,  PROMOTION  OF. 

Public  Property,  outdoor  advertising,  408.  See  also  OUTDOOR  AD- 
VERTISING. 

Public  Service  Corporation,  permitted  uses  of  structures  (Milwaukee). 
328.  See  also  PUBLIC  UTILITIES;  USES. 

Public  Squares,  see  PARKS  AND  PARKWAYS. 

Public  Use,  definition,  15 ;  necessary  allegations  in  eminent  domain  plead- 
ing, 55-57;  housing  of  people  of  limited  means,  57  note  20;  diversion 
to  other  uses  of  land  condemned  for  specific  use,  57  note  20;  divert- 
ing public  lands  to  a  different  use,  by  a  second  condemnation,  58; 
definition  at  basis  of  decisions  on  constitutionality  of  excess  condem- 
nation, 135.  See  also  EMINENT  DOMAIN;  EXCESS  CON- 
DEMNATION; HOUSING. 

Public  Use  Districts,  Alameda  (Cal.)  ordinance,  341-344.  See  also  USE 
LIMITATIONS  AND  DISTRICTS. 

PUBLIC  UTILITIES:     i.  In  General;  2.  Franchises. 

Cross-references:  BENEFIT  ASSESSMENTS  (3)  ;  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS  (5)  ;  EMINENT 
DOMAIN  (i);  NEW  YORK  CITY  (u)  ;  PLAN  (i)  ;  RECOM- 
MENDATIONS AND  SUGGESTED  REFORMS  (2,  17,  18) ; 
TRANSPORTATION  (7). 

1.  In  General:  part  of  city  plan,  27,  161,  515;  conformity  to  city  plan, 
enforcing,  29  and  note  3;  definition,  161 ;  control,  162,  561-2;  public 
ownership,  167;  should  be  a  monopoly,  168;  construction  or  exten- 
sion, 372  note  20. 

2.  Franchises:  necessity  of  scrutinizing,  161 ;  amendment  as  method  of 
control,   162,  163 ;  reservation  of  right  to  control,  162,  163 ;  amend- 
ment,  state's   right,    163 ;   taking  away,   as  method  of   control,   163 ; 
model,  elements,  167-168;  expiration  at  same  time,  competing  utilities, 
168;  provision  for  municipal  ownership,  169-170. 

Public  Utility,  declaration  of  (France),  534.  See  also  EMINENT  DO- 
MAIN. 

Public  Utility  Uses,  Milwaukee  ordinance,  328. 

Public  Works,  see  PUBLIC  IMPROVEMENTS. 

Publicity,  for  city  plan,  558.    See  also  PLAN. 

Purchase,  tide  lands,  preferred  right  of  riparian  owner,  171  note  n; 
property  by  city,  avoidance  of  debt  limit,  362;  national  battlefields 
at  Quebec  by  Canada,  382  note  3.  See  also  BEAUTY,  PROMO- 
TION OF;  CITIES  AND  TOWNS;  LANDOWNERS;  RI- 
PARIAN OWNERS. 

Purchasers,  superfluous  lands,  conditions  imposed,  English  practice,  73. 
See  also  EXCESS  CONDEMNATION. 

Purdy,  L.,  honesty  of  public  officials,  44  note  i.  See  also  PUBLIC  IM- 
PROVEMENTS. 

Purpose  of,  city  planning,  i ;  regional  planning,  4 ;  excess  condemnation, 
63,  129,  132 ;  zone  condemnation,  63 ;  replotting,  63 ;  use  zoning,  198- 
200;  zoning,  205  note  14  (7);  New  York  City  zoning  resolution, 
320;  Alameda  (Cal.),  ordinance,  352;  municipal  borrowing,  359- 360 ; 
English  Planning  Act  of  1909-1919,  section  of  city  as  planning  unit, 
499;  plan  as  expressed  in  the  English  law,  502.  See  also  CITIES 
AND  TOWNS;  EXCESS  CONDEMNATION;  PLAN;  RE- 


7i6  INDEX 

PLOTTING;  USE  ZONING;  ZONE  CONDEMNATION;  ZON- 
ING. 

Pushcarts,  use  of  streets,  legality,  176.  See  also  STREETS  AND  HIGH- 
WAYS. 

Qualifications  for  Membership,  art  commission,  see  BEAUTY,  PRO- 
MOTION OF;  planning  commissions,  see  PLANNING  COMMIS- 
SIONS. 

Quebec,  battlefields,  purchase  by  Canada,  382  note  3 ;  regulation  of  archi- 
tecture of  buildings,  392  note  16;  planning  law,  512.  See  also 
BEAUTY,  PROMOTION  OF;  CITIES  AND  TOWNS;  CON- 
STITUTIONAL AND  STATUTORY  PROVISIONS. 

Queensland,  excess  condemnation,  73  note  24.  See  also  EXCESS  CON- 
DEMNATION. 

Racial  Zoning,  definition,  constitutionality,  200;  Italian,  Jewish,  Syrian, 
Chinese  and  negro  quarters,  property  values,  200;  decisions,  287  note 
34.  See  also  ZONING. 

Railroads,  see  TRANSPORTATION. 

Rate  Fixing  Powers,  of  federal  government  as  related  to  possible  regional 
planning  by  U.  S.,  541.  See  also  PLAN;  UNITED  STATES 
GOVERNMENT. 

Rate  of  Taxation,  see  TAXATION. 

Rates,  regulation  as  method  of  control  of  public  utilities,  162.  See  also 
PUBLIC  UTILITIES. 

Rates  of  Fare,  see  TRANSPORTATION. 

Real  Estate  Tax,  local  taxation  in  Germany,  England  and  U.  S.,  358.  See 
also  TAXATION. 

Rear  Land,  see  AREA  LIMITATIONS  AND  DISTRICTS. 

Reasonable  Return,  see  RETURN  ON  CAPITAL. 

Reasonableness,  zoning  regulations,  legality,  282;  zoning  regulations, 
judicial  decisions,  287  note  34;  zoning  regulation,  presumption  from 
existence  of  right  to  appeal.  572  note  52.  See  also  APPEAL;  PRE- 
SUMPTIONS; ZONE  REGULATIONS. 

Recapture,  franchise  of  public  utility,  169-170;  water  front,  171,  172.  See 
also  HARBORS  AND  WATER  FRONT;  PUBLIC  UTILITIES. 

Reclassification,  within  districts,  Alameda  (Cal.),  353.  See  also  CLASSI- 
FICATION. 

Recognition  of  Zoning  Principles,  importance,  272  note  17.  See  also 
ZONING. 

RECOMMENDATIONS  AND  SUGGESTED  REFORMS:  i.  Plan- 
ning; 2.  Plan;  3.  Eminent  Domain;  4.  Excess  Condemnation; 
5.  Zone  Condemnation;  6.  Replotting;  7.  Zone  Regulations  in 
General;  8.  Bulk  Regulations  and  Zoning;  9.  Use  Regulations 
and  Zoning;  10.  Streets  and  Highways;  n.  Setbacks;  12.  Land 
and  Landowners;  13.  Public  Improvements;  14.  City  Financing; 
15.  Beauty,  Promotion  of;  16.  Outdoor  Advertising;  17.  Public 
Utilities;  18.  Transportation;  19.  Planning  Commissions; 
20.  Boards  of  Appeals. 

X.  Planning:  should  be  in  advance  of  development,  3;  should  avoid 
housing  details,  5 ;  zoning  should  be  under  police  power,  280-281 ; 
should  give  city  specific  power  to  zone,  281 ;  regional  planning  by  fed- 
eral government,  wisdom  of  preparing  an  advisory  plan.  541-542; 
federal  power  of  investigation,  experimentation  and  advice  should  be 
exercised,  542  and  note  9;  advisability  of  state  regional  planning  to 


INDEX  717 

conserve  state  resources,  544;  possibility  of  creation  of  local  public 
corporations  to  administer  local  planning,  545 ;  unwise  for  city  to 
extend  its  planning  jurisdiction  beyond  its  own  limit,  546-547;  grant 
of  planning  power  to  county  government  unwise,  547;  wisdom  of 
establishing  local  governments  with  planning  jurisdiction  only  for 
areas  larger  than  and  including  cities,  547;  advisability  of  appoint- 
ing joint  commissions  from  two  or  more  cities  or  towns  with  juris- 
diction over  matters  of  joint  concern,  548;  single,  permanent 
authority  for  interstate,  metropolitan  district,  548-550 ;  advisable  that 
state  should  supervise  local  planning,  550-552;  expert  assistance  in 
planning  by  state  to  local  communities,  553. 

2.  Plan:  content,  27;   control   over  public  utilities  should  be  used  to 
secure    conformity,    29 ;    approval    of    subdivision   before    recording 
should  be  required  to  insure  conformity,  32 ;  new  method  suggested 
of  protecting  mapped  streets  by  requiring  permit  to  build  contrary 
to  plan,  and  allowing  appeal  when  permit  refused,  34;  avoid  arbitrary 
zoning,  205  note  14  (8)  ;  provide  for  proper  correlation  of  uses  and 
districts,  206-207 ;  avoid  elaborate  district  classification,  291 ;  grant- 
ing by  United  States  of  permission  to  build  bridges  or  extend  bulk- 
head   lines   should   be   with   reference    to   city  plan,   not  navigation 
merely,  543. 

3.  Eminent  Domain:  reduce  delay  and  expense  to  city  by  abolishing 
bill  of   rights  in  state  constitutions,  45-46;    reduce  expense  to  city 
by   debiting   landowner   with   value   of    benefits    received    from    im- 
provement, 48;  best  tribunal  in  large  cities  is  judge  without  jury; 
board  of  commissioners  works  well  only  in  small  communities,  53-54; 
important  to  reform  procedure,  55 ;  desirability  of  rule  permitting 
allegations  of  general  public  use  in  pleading,  55-57. 

4.  Excess  Condemnation:  protect  public  improvements  and  industrial 
enterprises   by  condemnation  of  adjacent   land,  61.     See  also  infra 
this  title:     STREETS  AND  HIGHWAYS;  PUBLIC  IMPROVE- 
MENTS. 

5.  Zone  Condemnation:  bad  conditions  in  unhealthy  area  can  only  be 
met  by  condemnation  of  entire  area,  replanning  and  sale,  62. 

6.  Replotting:  should  be  under  public  supervision,  62-3;  should  be  by 
compulsion  of    landowner,  63 ;   should  be   under   police  power,   not 
eminent    domain,    85 ;    should    be    compulsory    where    subdivison    is 
faulty,  85. 

7.  Zone  Regulations  in  General:  should  not  be  retroactive,  201;  re- 
duce  nonconformity  gradually   by   restricting   renewals   and    repair, 
202-203 ;    proper    framing   of    provisions    excluding   uses    from    dis- 
tricts, 268  note   ii ;   avoid   discretionary   powers   of   officials  in   ad- 
ministering, 279;  must  be  reasonable  and  protect  all  in  a  particular 
classification  equally,  282-283 ;  should  be  stabilized  by  restrictions  on 
power  to   amend,   568;   should  be   quick  hearing  on   violations   and 
right  to  appeal,  569;   should  be  simplified  and  enforced  justly  and 
with  least  possible  hardship,  576. 

8.  Bulk  Regulations  and  Zoning:  to  secure  light  and  air  and  relief 
from   congestion,   make   height  and   area   limitations   by  zones,  41 ; 
limit  bulk  of  buildings  to  conserve  public  health,  194;  control  con- 
struction of  tall  buildings  by  zoning  restrictions,    196;   adopt  bulk 
regulations    to    existing    conditions,    different    in    different    sections, 
bulk  zoning,   198;   avoid  too  lax  height  and  area  restrictions,  275- 
276. 

g.  Use   Regulations   and   Zoning:    establish   use    zones   to    maintain 
values  and  secure  permanent  improvements,   199,  20°;   wise  where 


718  INDEX 

possible  to  establish  a  single  family  house  district,  273-275;  not 
necessary  to  exclude  heavy  industry  entirely  from  city,  zoning  serves 
same  purpose,  278. 

10.  Streets  and  Highways:  lay  out  street  system  to  obtain  blocks  that 
will  subdivide  into  lots  of  proper  form  and  area,  84;  gridiron  street 
system  should  be  replotted,  142;  city  should  have  the  fee  in  streets, 
not  merely  an  easement,  173-174;   remove  encroachments  to  relieve 
congestion,  175;  taking  land  for  streets,  considerations  in  favor  of 
wide  strips  or  narrow  strips  with  setbacks,  179;  widening  of  central 
business  and  traffic  streets,  saving  of  expense  by  setbacks  and  re- 
strictions on  renewal  or  repair,  181. 

11.  Setbacks:  important  at  corners  of  traffic  streets,   181 ;  to  maintain 
neighborhood  character  and  land  values,  181 ;  should  be  made  part 
of  city  map,  183. 

12.  Land  and  Landowners:  control  land  development  by  allowing  land- 
owner to  classify   land  as  agricultural   at   reduced   tax   rate  or  as 
building  at  increased  rate  (Canadian  method),  42;  extension  of  city 
limits  into  agricultural  lands,  agreements  with  owners  as  to  taxes, 
546;  important  that  zoning  law  should  authorize  regulation  of  use 
of    vacant    land,    566    note   43.      See    also    infra    this    title    CITY 
FINANCING. 

13.  Public    Improvements:    pay    for   public    improvements    by   benefit 
assessment  or  preferably  by  excess   condemnation   where   possible, 
138-139.     See  also  infra  this  title,  CITY  FINANCING. 

14.  City  Financing:  constitutional  or  statutory  limitation  on  amount  to 
be  raised  by  taxation  should  be  liberal,  358-359;  permanent  public 
improvements  should  be  financed  by  bond  issue,  359;  sinking  fund 
requirements,  correct  principle,  360;  do  not  fix  debt  limit  too  low, 
360;  borrowing  for  current  expenses  advisable  under  certain  con- 
ditions, 361 ;  deduct  from  debt  limit  money  spent  in  financing  self- 
supporting   municipal   enterprises,   361 ;   make   those   benefited   by   a 
public  improvement  contribute  to  its  cost  to  extent  of  benefit  re- 
ceived, 363-364 ;  establish  area  of  assessment  to  include  all  benefited, 
not  merely  abutting  landowners,  367-368;  benefit  assessments  should 
not  be  restricted  to  streets  and  parks,  but  extended  to  public   im- 
provements generally,  371. 

15.  Beauty,  Promotion  of:  should  be  under  police  power  where  regula- 
tion is  reasonable  and  proper,  391 ;  preservation  of  historic  places 
should  be  by  eminent  domain,  405 ;  maintain  by  regulations  aesthetic 
standards  for  special  localities,  405-406. 

1 6.  Outdoor  Advertising:  public  control  of  advertising  in  public  places 
should  be  exercised  to  cut  down  size  and  total  area  of  signs,  409; 
taxation  of   advertisements   in   street  cars   and   subways   and   other 
public  places,  409,  411;  keep  advertising  out  of  residential  neighbor- 
hoods by  establishing  advertising  districts,  or  structural  regulations, 
418. 

17.  Public    Utilities:   scrutinize   proposed    franchises    and    provide    for 
public  control,  161-162;  threat  of  competition  as  a  means  of  control, 
162;  avoid  grant  of  franchise  to  competing  public  utility,  166;  limit 
franchises  in  public   interest  at  time  of  grant  and  provide   for  re- 
gaining   franchise   on    favorable   terms,    167 ;   city    should   not    take 
compensation   for  grant  of   franchises,  168;  reserve  public  right  to 
recapture  franchises.  169-170. 

18.  Transportation:   different   methods   for   meeting  problem  of   rates 
of  fare  charged,  165-166;  avoid  long  term  contracts  between  city  and 
companies,  166  and  note  7;  provide  for  expiration  of  charters  of 


INDEX  719 

competing  companies  at  same  time,  168;  in  case  of  competing  com- 
panies, provide  for  joint  use  of  tracks  and  free  transfers,  168;  street 
railway  should  be  monopolistic  and  regulated,  168;  in  figuring  fair 
return  on  capital,  consider  extensions  as  part  of  entire  system,  168; 
conditions  of  grant  of  permit  to  lay  tracks,  168;  municipal  revenue 
from  transportation  companies  not  advisable,  168. 

19.  Planning   Commissions:   important  to  study   foreign  planning  ad- 
ministration,  443-444,  448;   commission   should   be   permanent,   554; 
power   of   appointing  should   be  in   mayor   solely,  556 ;   small  com- 
missions advocated,  556 ;  should  have  assistance  and  advice  of  city 
officials,  557 ;  little  need  of  city  attorney,  as   such,  in  membership, 
557 ;   law  providing  that  recommendations  can  be  disregarded  only 
by  two   thirds   vote   of   city   council,   unwise,  559 ;   planning   power 
should  not  be  divided  between  commissions  and  city  authorities,  but 
city   authorities   should   not    have   power   to   act   until    commissions 
have    made    report,    559;    planning    by   giving   commission    absolute 
control  over  city  action  ill-advised,  559-560;  unless  planning  commis- 
sion performs  duties  of  art  commission,  "design"  of  features  should 
not   be   referred,   562;   care   exercised   on   determining   matters   and 
details  to  be  referred,  562 ;  "public  improvements,"  grant  of  power  to 
commission  over  should  not  be  phrased  so  broadly  or  indefinitely,  562 ; 
duties  .should  be  limited  to  planning,  562-3;   do  not  combine   plan- 
ning and  park  boards,  562  note  35 ;   do  not  combine  planning  and 
art  commissions,  565. 

20.  Boards  of  Appeals:  creation  of  Boards  of  Appeal  should  be  by 
statute,    573 ;    function   should    be    limited   to    deciding   appeals   and 
allowing  exceptions,  573;   court  should  not  substitute  its  judgment 
for  that  of  Board  in  solution  of  zoning  difficulties,  575. 

Reconstruction,  after  catastrophe,  plan  required  (Prussia),  453;  build- 
ings destroyed  by  catastrophe  (Saxony),  475.  See  also  PLAN;  RE- 
PLOTTING. 

Recording,  requirements,  means  of  city  control  over  private  developments, 
32.  See  also  CITIES  AND  TOWNS;  LAND. 

Recreation  Grounds,  see  PARKS  AND  PARKWAYS. 

Reference  to  Commission,  matters  included,  detail,  561-2.  See  also 
PLAN;  PLANNING  COMMISSIONS. 

Regional  Planning,  see  PLANNING. 

Regulation,  use  of  private  land,  12;  use  of  property,  taking  by  eminent 
domain,  18;  height,  area  and  use  of  buildings,  part  of  city  plan, 
27;  rates  and  service  as  method  of  control  of  public  utilities,  162; 
traffic,  183;  parking  of  vehicles,  183;  tax  rate  in  cities  (Europe), 
359;  excessive  municipal  borrowing  (Europe),  360;  private  property 
under  police  power  to  promote  beauty,  proposed  constitutional 
amendment,  395  note  22  (at  p.  396);  outdoor  advertising,  408-411; 
pilotage,  state  and  federal,  538;  outdoor  advertising,  statutes  tabu- 
lated, 636;  area  of  buildings,  see  AREA  LIMITATIONS  AND 
DISTRICTS;  height  of  buildings,  see  HEIGHT  LIMITATIONS 
AND  DISTRICTS.  See  also  BEAUTY,  PROMOTION  OF; 
CITIES  AND  TOWNS;  CONSTITUTIONAL  AND  STATU- 
TORY PROVISIONS;  EMINENT  DOMAIN;  HARBORS  AND 
WATER  FRONT;  OUTDOOR  ADVERTISING;  POLICE 
POWER;  PUBLIC  UTILITIES;  STREETS  AND  HIGHWAYS; 
TAXATION;  TRANSPORTATION;  USE  LIMITATIONS  AND 
DISTRICTS. 

Regulations,  bulk,  see  BULK  REGULATIONS;  fire  proof,  see  F 

PROOF     REGULATIONS;     retroactive,     see     RETROACTIVE 


720  INDEX 

REGULATIONS;  structural,  see  STRUCTURAL  REGULA- 
TIONS; zoning,  see  ZONING  REGULATIONS. 

Regulatory  Legislation,  see  POLICE  POWER. 

"Regulatory"  Street  Plans,  Italy,  445.  See  also  STREETS  AND 
HIGHWAYS. 

Rehousing,  evicted  tenants,  excess  condemnation,  English  practice,  73. 
See  also  EXCESS  CONDEMNATION;  REPLOTTING;  ZONE 
CONDEMNATION. 

Relocation,  of  Works  of  Art,  planning  commission  (Cleveland,  Ohio), 
587;  art  commission  (New  York  City),  587.  See  also  BEAITY. 
PROMOTION  OF. 

Remnants,  elimination,  purpose  of  excess  condemnation,  132-133;  elimina- 
tion, constitutionality  of  statutes,  135;  condemnation  (Prussia),  451- 
45-'.  See  also  EXCESS  CONDEMNATION. 

Removal,  slums  (England),  80-83;  slums,  criticism  of  English  methods, 
82-83 1  slums,  necessity  of  co-ordination  with  city  planning,  83 ;  en- 
croachments, 175;  nonconforming  structures  (Los  Angeles),  201; 
works  of  art  (Cleveland,  O.),  587;  works  of  art  (New  York 
City),  587.  See  also  BEAUTY,  PROMOTION  OF;  ENCROACH- 
MENTS; NONCONFORMING  STRUCTURES;  PLANNING; 
ZONE  CONDEMNATION. 

Rents,  effect  of  large  tenement  houses  (Germany),  219.    See  also  LAND. 

Repair,  of  nonconforming  structures,  see  NONCONFORMING  STRUC- 
TURES. 

Replanning,  essential  in  zone  condemnation,  62 ;  devastated  regions 
(France),  514  note  34.  See  also  DEVASTATED  REGIONS; 
ZONE  CONDEMNATION. 

REPLOTTING:  i.  In  General;  2.  Police  Power  or  Eminent  Do- 
main; 3.  Procedure;  4.  European  Practice. 

Cross-references:  ADMINISTRATION  (5);  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS  (9) ;  EMINENT 
DOMAIN  (2);  ENGLAND  (10);  EXCESS  CONDEMNATION 
(6);  GERMANY  (9);  PLANNING  COMMISSIONS  (2,  3); 
POLICE  POWER  (5);  RECOMMEDATIONS  AND  SUG- 
GESTED REFORMS  (6,  10) ;  UNITED  STATES  (5) ;  ZONE 
CONDEMNATION  (i). 

I.  In  General:  definition,  62;  only  in  absence  of  costly  structures,  63; 
distinguished  from  zone  condemnation,  63 ;  after  catastrophes,  86 ; 
commissions,  86  note  71 ;  need  of  in  the  United  States,  142. 
a.  Police  Power  or  Eminent  Domain:  compulsory,  exercise  of  police 
power,  63,  64 ;  under  police  power,  advantages,  85 ;  under  eminent 
domain  in  few  cases,  85;  constitutionality  discussed,  142;  compulsory 
joint  improvements  on  analogy,  143,  144,  146. 

3.  Procedure:   petition   of    landowners   preliminary   finding   of   public 
utility,  85. 

4.  European  Practice:  Switzerland,  Germany,  83-127;  Zurich,  86,  87; 
Austro- Hungary,    87;    Frankfort-on-the-Main    (Lex   Adickes),    106- 
127;  Prussia,  451;  Saxony,  486-489. 

Report  of  Planning  Commission,  see  PLANNING  COMMISSIONS. 
Repurchase   by  Owner,  excess  condemnation,   131.     See  also   EXCESS 

CONDEMNATION. 
Research,  see  INVESTIGATIONS. 
Reservations  in  city  plan   for  public  buildings  and  parks,  28.     See  also 

I 'ARKS  AND  PARKWAYS;   PLAN;   PUBLIC  BUILDINGS. 
Reserve  Lands,  part  of  prescribed  plan  (France),  515.    See  also  LAND; 

I 'LAN. 


INDEX  721 

Residential  Class  Rules,  Diisseldorf  ordinance,  250.  See  also  RESI- 
DENTIAL USES  AND  DISTRICTS. 

Residential  Land,  classification  and  taxation  (Canada),  41.  See  also 
LAND. 

Residential  Neighborhoods,  outdoor  advertising,  412-419.  See  also 
OUTDOOR  ADVERTISING;  RESIDENTIAL  USES  AND 
DISTRICTS. 

Residential  Streets,  suburbs,  see  setbacks,  178;  regulation  of  traffic  (Prus- 
sia), 474-    See  also  SETBACKS;  STREETS  AND  HIGHWAYS. 

RESIDENTIAL  USES  AND  DISTRICTS:  i.  In  General;  2.  Dwell- 
ing Houses;  3.  Tenement  Houses;  4.  Apartment  Houses;  5.  One 
Family  Houses;  6.  Two  Family  Houses;  7.  Attached  Houses; 
8.  Detached  Houses;  9.  Residence  Districts  in  General;  10.  One 
Family  House  Districts;  n.  Two  Family  House  Districts; 
12.  Residence  Exception  Districts. 

Cross-references :  BEAUTY,  PROMOTION  OF  (7)  ;  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS  (5)  ;  GER- 
MANY (5);  INDUSTRIAL  USES  AND  DISTRICTS  (4); 
LAND  (11);  MASSACHUSETTS  (4);  NEW  JERSEY  (3); 
NEW  YORK  CITY  (6);  ORDINANCES  (i)  ;  OUTDOOR  AD- 
VERTISING (4)  ;  RECOMMENDATIONS  AND  SUGGESTED 
REFORMS  (9,  16)  ;  SETBACKS  (4)  ;  STREETS  AND  HIGH- 
WAYS (13);  USE  LIMITATIONS  AND  DISTRICTS 
(3)- 

1.  In  General:  zoning  regulations,  203;  exclusion  of  residences  from 
heavy  industrial  districts,  criticism,  277 ;  design  and  appearance  of 
residences   regulated    (Prussia),  473;    residence  regulations   not   in- 
cluded in  New  York  zoning  law,  566  note  43. 

2.  Dwelling  Houses:  number  to  acre  (England),  503-504;  regulations, 
East   Birmingham    (England)    scheme,  507  note  20;   location    (Cal. 
and  Oregon),  566  note  43. 

3.  Tenement  Houses:  promulgation  of  regulations,  function  of  state 
planning,  8;  replacing  private  houses  along  subway  routes,  162;  fire 
proof  regulations,  effect  in  New  York  and  Chicago,  192 ;  exclusion 

from  single  family  house  districts,  205  note  14  (13)  ;  effect  on  rents 
in  Germany,  219;  Diisseldorf  ordinance,  260;  in  residence  districts 
(New  York  City),  268;  desirability  of  segregating,  273-274  and  note 
19;  exclusion  from  districts  as  part  of  systematic  zoning,  constitu- 
tionality, opinion  of  Massachusetts  justices,  289;  expropriation  of 
land  for  (Prussia),  455;  location  (Cal.  and  Oregon),  566  note 

43- 

4.  Apartment  Houses:  exclusion  from  single  family  house  districts, 
205  note  14  (13)  ;  effect  on  rents  in  Germany,  219;  Diisseldorf  ordi- 
nance,  259-260 ;    garden,   in    New    York,   significance,    276   note   23 ; 
location   (Cal.  and  Oregon),  566  note  43. 

5.  One  Family  Houses:  definition,  Diisseldorf  ordinance,  252;  regula- 
tions, Diisseldorf  ordinance,  259-261 ;  in  New  York  City,  reasons  for 
failure  to  protect,  274;  location  (Cal.  and  Oregon),  566  note  43.    See 
also  infra  this  title,  ONE  FAMILY  HOUSE  DISTRICTS. 

6.  Two    Family    Houses:     Diisseldorf    ordinance,   259-261;    location, 
(Cal.  and  Oregon),   566  note  43.     See  also  infra  this  title,  TWO 
FAMILY  HOUSE  DISTRICTS. 

7.  Attached    Houses:      Diisseldorf,    260;    Frankfort,    262    (No.    i)  ; 
Cologne,  262  (No.  2)  ;  Karlsruhe,  263    (No.  3)  ;  Munich,  264  (No. 
4)~;  Saxony,  491;  East  Birmingham  (England)  scheme,  508  note  20; 
location    (Cal.  and  Oregon),  566  note  43. 


723  INDEX 

8.  Detached    Houses:      Diisseldorf,    260;    Frankfort,    262    (No.    i); 
Cologne,  262  (No.  2);  Karlsruhe,  263   (No.  3);  Munich,  264  (No. 
4)  ;  Saxony,  491. 

9.  Residence  Districts  in  General:  zoning  regulations  in  general,  205 
note  14  (13)  ;  Frankfort,  214;  Toronto,  265;  Los  Angeles,  267;  New 
York  City,  uses  permitted  and  excluded,  268;  desirability  of  segre- 
gating single  family  houses,  273-274  and  note  19;   New  York  City, 
criticism,  273-274  and  note   19;   business  excluded,  constitutionality, 
discussion,  285,  288;  manufacturing  excluded,  constitutionality,  285, 
287  and  note  36;  how  far  can  subdivision  legally  go,  unsettled,  291- 
292;   New  York  City  zoning  resolution,  307;   uses  permitted    (Mil- 
waukee), 325-326;  Alameda  (Cal.),  341,  342;  Prussia,  473;  shops  or 
other  buildings  allowed,   East  Birmingham    (England)   scheme,  508 
note  20.     See  also  GARAGES. 

10.  One  Family  House  Districts:  exclusion  of  apartment  houses,  flats, 
tenement  houses,  etc.,  205  note  14  (13)  ;  desirability  273-274  and  note 
19;  power  to  create  under   New   York   City  charter,  275  note  21; 
judicial  decisions,  284  note  34;  legality  considered,  292. 

11.  Two  Family  House  Districts:  judicial  decisions,  284  note  34;  ex- 
clusion of  tenement,  legality  unsettled,  291-292. 

12.  Residence    Exception    Districts:    light,    unobjectionable   industries 
permitted   (Los  Angeles),  267. 

Resorts,  formulation  of  plans  required   (France),  515.     See  also  PLAN. 

Resources,  state,  conservation,  function  of  state  planning,  8;  conservation 
by  regional  planning,  possibilities,  544.  See  also  PLANNING; 
STATES. 

"Responsible  Authority,"  see  ADMINISTRATION. 

Restoration  of  Existing  Buildings,  zoning  resolution  (New  York  City), 
322-323.  See  also  NONCONFORMING  BULKS;  NONCON- 
FORMING  STRUCTURES;  NONCONFORMING  USES. 

Restrictions,  effect  on  cost  of  public  improvements,  43;  land  resold,  ex- 
cess condemnation,  130;  land  taken  under  excess  condemnation 
statutes,  131 ;  deeds  supplementing  zoning  regulations,  205  note  14 
(ii)  ;  building  freedom  under  German  law,  remedy,  460-461;  build- 
ing on  unplanned  areas  (Sweden),  462;  area  of  buildings,  see  AREA 
LIMITATIONS  AND  DISTRICTS;  height  of  buildings,  see 
HEIGHT  LIMITATIONS  AND  DISTRICTS.  See  also  EX- 
CESS CONDEMNATION;  PUBLIC  IMPROVEMENTS;  ZONE 
REGULATIONS. 

Resubdivision  of  Land,  devastated  regions  (France),  514  note  34.  See 
also  DEVASTATED  REGIONS;  SUBDIVISIONS. 

Retrocession  of  Expropriated  Land,  to  former  owners  (France),  102. 
See  also  EMINENT  DOMAIN;  LAND;  LANDOWNERS. 

Retroactive  Regulations,  building,  191 ;  zoning  plans,  legality,  201 ;  zon- 
ing (Los  Angeles),  267;  zoning  (New  York  City),  268.  See  also 
ZONE  REGULATIONS;  ZONING. 

Return  on  Capital,  transportation  company's  rights,  164;  consideration 
of  track  extensions,  168.  See  also  PUBLIC  UTILITIES;  TRANS- 
PORTATION. 

Revenue  for  City,  from  transportation  companies,  168.  See  also  CITIES 
AND  TOWNS;  RECOMMENDATIONS  AND  SUGGESTED 
REFORMS;  TRANSPORTATION. 

Reversal  of  Decision,  of  planning  authorities.  Board  of  Appeals,  569. 
See  also  A1TF.AL;  HOARDS  ( >F  APPEALS. 

Reversion  of  Expropriated  Land,  to  former  owners  (France),  102.  See 
also  EMINENT  DOMAIN;  LAND;  LANDOWNERS. 


INDEX  723 

Review,  proceedings  on  appeal  from  Board  of  Appeals,  297;  decisions  of 
planning  authorities,  by  Board  of  Appeals,  569.  See  also  APPEAL; 
BOARDS  OF  APPEALS;  PLANNING  COMMISSIONS. 

Revision  of  Building  Plans,  Bureaus  of  Building  Advice  (Germany),  406 
note  54. 

Rhode  Island,  constitutional  amendment  authorizing  excess  condemnation, 
131  and  notes  17  and  22,  149;  owner's  right  to  repurchase,  excess 
condemnation,  132 ;  statute  authorizing  excess  condemnation  in 
Providence,  159.  See  also  CONSTITUTIONAL  AND  STATU- 
TORY PROVISIONS;  EXCESS  CONDEMNATION;  LAND- 
OWNERS. 

Right  of  Private  Property,  constitutional  guarantees,  13.  See  also  CON- 
STITUTIONAL AND  STATUTORY  PROVISIONS. 

Riparian  Owners,  see  NAVIGABLE  WATERS. 

Roads,  laying  out,  function  of  state  planning,  8.  See  also  STATES, 
STREETS  AND  HIGHWAYS. 

Roadway,  use,  traffic  regulations,  183.  See  also  POLICE  POWER; 
STREETS  AND  HIGHWAYS. 

Rochdale  (England)  scheme,  houses  to  acre,  503  note  14. 

Roof  Signs,  height  and  setback  restrictions  (New  York  City),  419  note 
67;  forbidden  (England),  421.  See  also  OUTDOOR  ADVER- 
TISING. 

Roumania,  legislation  for  promotion  of  beauty,  396  note  24.  See  also 
BEAUTY,  PROMOTION  OF. 

Routes,  Transportation,  relation  to  city  growth,  162;  city's  power  to 
control,  164.  See  also  CITIES  AND  TOWNS;  TRANSPORTA- 
TION. 

Royal  Building  Board  (Sweden),  influence  over  town  planning,  464. 
See  also  PLANNING;  SWEDEN. 

Ruislip  Northwood  (England),  houses  to  acre,  503  note  16;  use  districts, 
504.  See  also  USE  LIMITATIONS. 

Rules  of  Damages,  condemnation  proceedings,  47-51.  See  also  EMI- 
NENT DOMAIN. 

Rules  of  Interpretation,  see  INTERPRETATION. 

Rules,  Zoning,  see  ZONE  REGULATIONS. 

"Rural  Buildings,"  definition,  Diisseldorf  ordinance,  252.  See  also 
ZONE  REGULATIONS;  ZONING. 

Rural  Land,  classification  and  taxation  (Philadelphia),  42  note  21.  See 
also  LAND;  TAXATION;  ZONING. 

Rural  Planning,  see  PLANNING. 

Ruskin,  Lectures  on  Art,  object  of  art,  381.  See  also  BEAUTY,  PRO- 
MOTION OF. 

Russell  Sage  Foundation,  survey  of  procedure  in  eminent  domain,  51, 
55.  See  also  EMINENT  DOMAIN. 

St.  John  (New  Brunswick),  planning  schemes,  512  note  30.  See  also 
PLAN;  PLANNING. 

St.  Louis,  business  structures  about  parks,  prohibition,  387  note  13  (at 
p.  388).  See  also  PARKS  AND  PARKWAYS;  ZONE  REGULA- 
TIONS 

Sale  of  Superfluous  Lands,  see  EXCESS  CONDEMNATION. 

Saloniki,  replotting  provisions  summarized,  87  note  76.  See  also  RE- 
PLOTTING. 

Sandwich  Men,  right  to  use  streets,  175-  See  also  STREETS  AND 
HIGHWAYS. 


724  INDEX 

Sanitary  Engineering,  relation  to  city  planning,  5.  See  also  PLAN- 
NING. 

Sanitary  Ordinances,  France,  514  note  34.  See  also  ZONE  REGULA- 
TIONS. 

Sanitation,  cities  (France),  76;  soil  (France),  515.  See  also  CITIES 
AND  TOWNS;  LAND. 

Saskatchewan,  Town  Planning  Act,  265  note  3;  self  supporting  municipal 
enterprises,  debt  limit,  361  note  3;  benefit  assessments,  372  note  20; 
statutes,  promotion  of  beauty,  382  note  3 ;  regulation  of  buildings, 
etc.,  about  municipal  centers,  392  note  16;  planning  law  modeled  on 
English  act,  510  note  27;  zoning  regulations,  512.  See  also 
BEAUTY,  PROMOTION  OF;  BENEFIT  ASSESSMENTS; 
CITIES  AND  TOWNS;  CONSTITUTIONAL  AND  STATU- 
TORY PROVISIONS;  ZONE  REGULATIONS. 

Saxony,  replotting  statutes,  87,  105  and  note  90;  planning  jurisdiction, 
449;  planning  law  of  1900-1004,  457-462;  Building  Law  of  1900,  474- 
495.  See  also  ADMINISTRATION;  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  REPLOTTING. 

Scenic  Land,  see  LAND.     See  also  BEAUTY.  PROMOTION  OF. 

Scheme,  English  practice,  502-503.     See  also  PLAN. 

Schenectady,  planning  and  park  boards,  consolidation,  562  note  35.  See 
also  CRITICISMS;  PARKS  AND  PARKWAYS;  PLANNING 
COMMISSIONS. 

Scope,  city  planning,  4;  state  and  national  planning,  8.  See  also  PLAN- 
NING. 

Scotland,  English  planning  law  of  1909,  with  modifications,  in  force,  510. 
See  also  CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS. 

Seaside  Resorts,  formulation  of  plans,  requirements  (France),  515.  See 
also  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS; 
PLAN. 

Secretary  of  War,  authority  over  harbor  lines,  540.  See  also  HARBORS 
AND  WATER  FRONT. 

Self-Government,  local,  see  LOCAL  SELF-GOVERNMENT. 

Self-Supporting  Municipal  Enterprises,  debt  limit,  361  and  note  3.  See 
also  CITIES  AND  TOWNS. 

Semi-residential  Use  District,  definition,  reasons  for,  278  note  28.  See 
also  RESIDENTIAL  USES  AND  DISTRICTS. 

Service,  regulation  as  method  of  control  of  public  utilities,  162;  trans- 
portation companies,  control  by  city,  164-166;  at  cost  agree- 
ments between  city  and  transportation  companies,  166  and  note  6. 
See  also  CITIES  AND  TOWNS;  CONTRACTS;  TRANSPOR- 
TATION; PUBLIC  UTILITIES. 

Servitudes,  see  EASEMENTS. 

SETBACKS:  i.  In  General;  2.  Legislation;  3.  Constitutionality; 
4.  Location. 

Cross-references:  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS  (5,  9);  ENGLAND  (5);  LANDOWNERS  (i); 
MASSACHUSETTS  (3,  5);  NEW  YORK  (4);  NEW  YORK 
CITY  (6,  7);  ORDINANCES  (i);  PARKS  AND  PARKWAYS 
(5);  POLICE  POWER  (4);  RECOMMENDATIONS  AND 
SUGGESTED  REFORMS  (10,  n);  STREETS  AND  HIGH- 
WAYS (12,  13). 

i.  In  General:  part  of  city  plan,  27.  561  note  31;  generally  m<-<l  in 
United  States,  177  note  4;  definition  and  establishment,  177;  variety 
in  ordinances,  177;  existing  buildings  in  front  of  line,  177 


INDEX  725 

178;  advantages,  179,  181-183;  cost,  181-183;  fixed  before  erection  of 
structures  (Frankfort),  229  (sec.  8)  ;  effect  on  height  limitations 
(New  York  City),  270;  consideration  of  aesthetics  required  (Ger- 
many), 401;  history  (England),  498;  jurisdiction  of  planning  com- 
missions, 561-2;  power  of  city  to  fix  (Penn.),  587. 

2.  Legislation:     Massachusetts,  177  note  6,  184;  New  York  City,  180 
note  7;  Indiana,  184;  New  York,  185;   Frankfort,  229   (sees.  8  and 
9),  239-241    (sec.  4);  Diisseldorf,  254,  260,  261;   Cologne,  262   (No. 
2);    Karlsruhe.   263    (No.   3);    Munich,   264    (No.  4);    New   York 
City,  270;  Cleveland   (Ohio),  280  note  31;  Milwaukee,  280  note  31, 
332,  333,  335;   Paris,  402  note  43;   Prussia,  452;   Saxony,  476,  477, 
480;  East  Birmingham   (England),  506  note  20;  statutes  tabulated, 
633. 

3.  Constitutionality:  establishment  without  compensation  under  police 
power,   177  note  5;  constitutionality  unquestioned,  183;  constitution- 
ality discussed,  279-280. 

4.  Location:    suburban   and   minor  residential    streets,    178;    suburban 
business  and  traffic  streets,  179;  central  business  and  traffic  streets, 
181 ;  parks  (Mass.),  387  note  13. 

Sewerage,  Metropolitan  Sewerage  Commission,  Massachusetts,  547-8.  See 
also  CITIES  AND  TOWNS;  PLANNING  COMMISSIONS. 

Sewerage  Maps,  reference  to  planning  commission  (New  York),  582. 
See  also  MAPS;  PLANNING  COMMISSIONS. 

Sewers,  city  planning,  4;  part  of  prescribed  plan  (France),  515;  juris- 
diction of  planning  commission,  561-2.  See  also  ADMINISTRA- 
TION; PLAN;  PLANNING;  PLANNING  COMMISSIONS. 

Shade  Trees,  planting,  legality,  383  and  note  6.  See  also  BEAUTY, 
PROMOTION  OF. 

Shoemaker  Case,  eminent  domain,  385.     See  also  EMINENT  DOMAIN. 

Sidewalks,  use,  traffic  regulations,  183.  See  also  MERCHANDISE; 
STREETS  AND  HIGHWAYS. 

Single  Family  House  Districts,  see  RESIDENTIAL  USES  AND  DIS- 
TRICTS. 

Single  Tax,  discussion,  376-379.     See  also  TAXATION. 

Sinking  Fund  Provisions,  municipal  borrowing,  360.  See  also  CITIES 
AND  TOWNS. 

Skyscrapers,  unprofitable  and  undesirable  for  community,  195-197.  See 
also  TALL  BUILDINGS. 

Sky  Signs  on  roofs,  height  and  setback  restrictions  (New  York  City), 
419  note  67;  forbidden  (England),  421.  See  also  OUTDOOR  AD- 
VERTISING. 

Slums,  Removal,  see  ZONE  CONDEMNATION. 

"Small  House"  definition,  Dusseldorf  ordinance,  252.  See  also  RESI- 
DENTIAL USES  AND  DISTRICTS. 

Social  Reform,  law  involving,  uncertainty  produced  by  limitation  of  right 
of  appeal  to  United  States  Supreme  Court,  24.  See  also  AP- 
PEAL; CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS. 

Societies,  housing,  power  to  expropriate  (Holland),  496;  preparation  of 
plans  compulsory  (France),  515,  533.  See  also  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS;  EMINENT  DO- 
MAIN; HOUSING;  PLAN. 

Sources  of  Municipal  Revenue,  see  CITIES  AND  TOWNS. 

South  Australia,  planning  law.  510  note  27.    See  also  AUSTRALIA. 

South  Carolina,  constitutionality  of  excess  condemnation,  133.  See  also 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS;  EX- 
CESS CONDEMNATION. 


726  INDEX 

Southern  States,  racial  zoning,  200.  See  also  RACIAL  ZONING;  ZON- 
ING. 

Special  Assessments,  see  BENEFIT  ASSESSMENTS. 

Special  Localities,  see  LOCALITIES. 

Special  Provisions,  excluding  uses  from  districts,  proper  framing,  268 
note  ii.  See  also  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS;  DISTRICTS;  USES. 

Specific  Public  Use,  necessary  allegations  in  eminent  domain  pleading, 
55-57-  See  also  EMINENT  DOMAIN. 

Specific  Statutory  Authority,  zoning,  necessity,  281.  See  also  CITIES 
AND  TOWNS;  CONSTITUTIONAL  AND  STATUTORY  PRO- 
VISIONS; ZONING. 

Spires,  zoning  regulations  (New  York  City),  270.  See  also  ZONE 
REGULATIONS. 

Squares,  see  PARKS  AND  PARKWAYS. 

Stability  of  City  Plan,  difficulty  in  amending,  568.     See  also  PLAN. 

Stables,  discretionary  power  of  Board  of  Appeals  (New  York  City),  270. 
See  also  BOARDS  OF  APPEALS;  RESIDENTIAL  USES  AND 
DISTRICTS. 

Standards,  .Esthetic,  Germany,  403-405.  See  also  BEAUTY,  PROMO- 
TION OF. 

State  Art  Commissions,  powers  advisory,  565.  See  also  BEAUTY, 
PROMOTION  OF. 

State  Highway  Act  (Penn.),  planning  provisions,  588.  See  also  CON- 
STITUTIONAL AND  STATUTORY  PROVISIONS. 

State  Planning,  see  PLANNING. 

State  Planning  Bureau  Act,  Pennsylvania,  604-5.  See  also  CONSTI- 
TUTIONAL AND  STATUTORY  PROVISIONS. 

State  Regulations,  basis  of  use  zoning  (Germany),  211  note  3.  See  also 
USE  ZONING;  ZONE  REGULATIONS. 

Statement,  principles  of  zoning  (Bassett),  204  note  14.  See  also  BAS- 
SETT,  E.  M.;  ZONING. 

STATES:  i.  In  General;  2.  Planning  Jurisdiction;  3.  Research  and 
Advice;  4.  Supervision. 

Cross-references:     CITIES  AND  TOWNS  (i)  ;  HARBORS  AND 
WATER   FRONT    (r,   2,   3,   7,  8);    NEW   YORK   CITY    (10); 
PARKS    AND    PARKWAYS    (2);    PLANNING    (i,   7,   9,    12); 
PUBLIC  UTILITIES  (2);  RECOMMENDATIONS  AND 
GESTED    REFORMS    (i);    RESIDENTIAL   USES    AND    DIS- 
TRICTS   (3);    STREETS    AND    HIGHWAYS    (14);    TK 
PORTATION  (i,  2);  UNITED  STATES  GOVERNMENT   (4); 
ZONE  REGULATIONS  (i). 

i.  In  General:  constitutional  protection  of  property  rights,  duplication 
in    federal   constitution,   45;    excess   condemnation.    i><i\v<  v 
131 ;  pilotage,  power  to  regulate,  538;  pier  and  bulkhead  lines,  power 
to  regulate,  539,  540. 

a.  Planning  Jurisdiction:  development  of  state  resources,  function  of 
state  planning,  8;  delegation  to  cities,  205  note   14   (5), 
many,  448;  powers  over  local  planning,  536;   function  in  planning, 
543,    545;    capital    city    and    regional,   543,    544;    statutes    tab; 
639. 

3.  Research  and  Advice:  in  planning,  function  of  state,  543:  to  local 
planning  authorities,  552;  by  state  bureau  to  cities  (Penn.),  (••• 

4.  Supervision:    of    municipal    borrowinir     H  .Vwi ;    of 
authorities  (Saxony),  459;  of  local  planning,  function  of  stat< 
550-552  and  note  16. 


INDEX  727 

States    and    Provinces:      see    following    specific    headings:      BADEN; 
BAVARIA;     CALIFORNIA;     COLORADO;     CONNECTICUT 
DISTRICT  OF  COLUMBIA;   HESSE    (Germany);   ILLINOIS 
INDIANA;    MANITOBA;    MARYLAND;   MASSACHUSETTS; 
MINNESOTA;     MISSOURI;     NEBRASKA;     NEW     BRUNS- 
WICK     (Canada);      NOVA      SCOTIA;      OHIO;      ONTARIO; 
OREGON;    PENNSYLVANIA;    PRINCE   EDWARD    ISLAND; 
RHODE    ISLAND;    SASKATCHEWAN;    SAXONY;    SOUTH 
m  CAROLINA;  VIRGINIA;  WISCONSIN. 

Stations,  railroad,  part  of  city  plan,  27;  street  railway,  jurisdiction  of 
planning  commission,  561-2.  See  also  ADMINISTRATION; 
PLAN;  PLANNING  COMMISSIONS;  TRANSPORTATION. 

Statues,  location,  reference  to  planning  commission  (New  York),  583. 
See  also  BEAUTY,  PROMOTION  OF;  PLANNING  COMMIS- 
SIONS. 

Statutes,  see  CONSTITUTIONAL  AND  STATUTORY  PROVISIONS. 

Statutory  Authority,  zoning  by  city,  necessity  of  express  provisions,  281. 
See  also  CITIES  AND  TOWNS;  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  ZONING. 

Steps,  encroachments  on  street,  allowance  and  removal,  175.  See  also 
ENCROACHMENTS;  STREETS  AND  HIGHWAYS. 

Stockholders,  transportation  companies,  reasonable  return  on  money  in- 
vested, 164.  See  also  TRANSPORTATION. 

Storage,  merchandise  on  streets,  abutter's  right,  175.  See  also  LAND- 
OWNERS; STREETS  AND  HIGHWAYS;  ZONE  REGULA- 
TIONS. 

Store  Door  Delivery,  proposed  port  zoning  (New  York  City),  278  note 
28.  See  also  HARBORS  AND  WATER  FRONT. 

Stories  in  Buildings,  see  HEIGHT  LIMITATIONS  AND  DISTRICTS. 

Streams,  taking  banks  by  eminent  domain,  383-384.  See  also  EMINENT 
DOMAIN. 

Street  and  Building  Line  Law  of  1875,  Prussia,  466-472.  See  also  SET- 
BACKS. 

Street  Car  Advertisements,  public  control,  408-409.  See  also  OUT- 
DOOR ADVERTISING;  TRANSPORTATION. 

Street  Lines,  see  STREETS  AND  HIGHWAYS. 

Street  Plan,  protection  from  encroachment,  31-39;  "regulatory"  and  "ex- 
tension" (Italy),  445.  See  also  ENCROACHMENTS;  STREETS 
AND  HIGHWAYS. 

Street  Railway  Stations,  powers  over,  grant  to  commission,  561-2.  See 
also  PLANNING  COMMISSIONS;  TRANSPORTATION. 

Street  Railway  Systems,  part  of  city  plan,  27.  See  also  TRANSPOR- 
TATION. 

Street  Railways,  see  TRANSPORTATION. 

Street  Railways,  Municipal,  see  CITIES  AND  TOWNS.  See  also 
TRANSPORTATION. 

STREETS  AND  HIGHWAYS:  i.  In  General;  2.  Jurisdiction  of 
Planning  Commission;  3.  Plan;  4.  Street  Lines;  5-  Mapper 
Streets;  6.  Construction;  7.  Excess  Condemnation;  8.  Beauty, 
Promotion  of;  9.  Abutting  Landowners;  10.  Maintenance; 
ii.  Changes  in  Location  of  Width;  12.  Traffic  Streets;  13.  Resi- 
dential Streets;  14.  State  Highways;  15.  National  Highways. 
Cross-references:  BEAUTY,  PROMOTION  OF  (10,  11);  EMI- 
NENT DOMAIN  (6)  ;  ENGLAND  (4)  ;  EXCESS  CONDEMNA- 
TION (7)  ;  FRANCE  (3)  ;  GERMANY  (3,  4)  ;  HEIGHT  LIMI- 
TATIONS (i,  4)  ;  LAND  (/)  ;  LANDOWNERS  (i,  2)  ;  MASSA- 


728  INDEX 

CHUSETTS  (2);  NEW  YORK  (3);  NEW  YORK  CITY  (5); 
OUTDOOR  ADVERTISING  (5);  PARKS  AND  PARKWAYS 
(7)  ;  PLAN  (5)  ;  RECOMMENDATIONS  AND  SUGGESTED 
REFORMS  (2,  10,  ii.  14);  SETBACKS  (4);  TRANSPORTA- 
TION (4);  UNITED  STATES  (3);  ZONING  (3). 

1.  In  General:  definition  of  street  use,  175;  planning  law   (Sweden), 
462;  regulation  of  width  and  direction   (England),  498. 

2.  Jurisdiction    of    Planning    Commission:    proposed    Metropolitan 
Highway  Commission   (Mass.),  548  and  note   12;  grant  of  power, 
561-2;   width  and   grade,   562;   location    (New   York),   583;   Cleve- 
land (Ohio),  587. 

3.  Plan:  importance  of  layout,   11;   street  systems,  part  of,  27;  main 
thoroughfares  only,  28;  conformity  required  before  street  accepted, 
28;    submission   required    (Zurich),   84;    gridiron    system    criticised, 
142;  zoning  at  time  of  layout,  205  note  14  (6)  ;  street  as  districting 
unit   (New  York  City),  268;  classification    (Prussia),  474;   layouts 
(Saxony),   477;    setting   land   apart,    East    Birmingham    (England) 
scheme,  508  note  20;  layout,  part  of  (France),  515. 

4.  Street  Lines:  establishment  before  erection  of  structures   (Frank- 
fort),  229    (sec.   8);   statute    (Paris),   402  note  43;    Prussia,  452; 
Saxony,  480.     See  also  infra  this  title,  BEAUTY,   PROMOTION 
OF. 

5.  Mapped  Streets:  prevention  of  encroachments,  various  methods  con- 
sidered,   28-39;    protection,    new    method    suggested,    34;    duty    of 
authorities    to    construct    (Wiirttemberg   and    Baden),   461;   agree- 
ment of  landowners  to  pay  cost   (Wiirttemberg  and  Baden),  462; 
improvements  made  in  bed  of,  compensation,  see  EMINENT  DO- 
MAIN  (6). 

6.  Construction:    feasibility   of    special    pavements   in    manufacturing 
districts,  200;  German  methods  discussed,  366-367;  Saxony,  483-485; 
payment  of  cost  by  government  and  landowner  ( England ) ,  504-505 ; 
payment  of  cost,  East  Birmingham   (England)   scheme,  506  note  20. 
See  also  BENEFIT  ASSESSMENTS. 

7.  Excess  Condemnation:  general  discussion,  60;   under  French  ex- 
propriation law,  91 ;  statutory  authorization  in  some  states,  130. 

8.  Beauty,  Promotion  of:  streets  leading  to  places  of  beauty,  condemn- 
ing land,  390  note  15  (at  p.  391)  ;  park  strips,  Clinton  Avenn. 
(New   York),   390  note   15;    regulation   of    architecture    (Quebec), 
392  note   16;   consideration  of  aesthetics  in  establishment  of   street 
lines  required  (Germany),  401. 

9.  Abutting  Landowners:  rights  of,  and  rights  of  public,  173;  city's 
interference  with  rights  of,  173. 

10.  Maintenance:      Saxony,    483-485;     East     Birmingham     (England) 
scheme,  506,  507  note  20. 

11.  Changes    in    Location    or    Width:     (Street   Widening)    France. 
Germany  and   United   States,  66  note  9;   Enplaml.  t    Bir- 
mingham  (England)   scheme,  506  note  20;   (Change  in  Location) 
Pennsylvania.  588. 

12.  Traffic  Streets:    (Setbacks)  suburban.  170:  central,  iSi  ;  importance 
at   corners,  automobile  traffic.    181 ;    (Traffic   Regulations)    use   of 
streets,   183;  one  way  streets,  183;  parking  of  vehicles,  183;  police 
at  congested  corners,  iS.v.    Prussia.  474. 

13.  Residential  Streets:  in  suburbs,  setbacks,  178. 

14.  State  Highways:  part  of  a  possible  state  regional  plan,  544;  lay-out 
(Penn.). 

15.  National  Highways:  possibilities  of  national  planning,  541. 


INDEX  729 

Structural   Regulations,   purpose,   relation   to  city  plan,    102.     See   also 

FIRE  PROOF  REGULATIONS;   ZONE  REGULATIONS. 
Structural  Requirements,  definition,  191.    See  also  PLAN. 

Structures,  existing,  nonconformity,  200-204;  historic  and  artistic,  out- 
door advertisements  regulated  (England,  France,  Germany),  420- 
421 ;  temporary  allowance  after  adoption  of  plan  (Prussia),  454.  See 
also  BEAUTY,  PROMOTION  OF;  NONCONFORMING 
STRUCTURES;  OUTDOOR  ADVERTISING;  PLAN. 

Stuttgart,  bulk  zoning,  by  streets,  216.     See  also  BULK  ZONING. 

Subdivisions,  size  and  shape  as  affecting  character  of  use,  n;  part  of 
city  plan,  27;  approval  of  city  as  a  prerequisite  to  recording,  enforce- 
ment of  city  plan,  32;  cancellation  by  owner  voluntarily  (Canada), 
41;  approval  required  (Vienna),  84;  a  part  of  city  plan  (Sweden), 
84;  control  of  (Europe),  84;  of  lot,  novel  feature  of  Swedish  plan- 
ning law,  462;  of  lot  (Saxony),  477;  regulations  (Saskatchewan), 
512;  devastated  regions  (France),  514  note  34;  plotting  properly 
within  commission's  jurisdiction,  562.  See  also  LAND;  LAND- 
OWNERS. 

Submission  of  Plan,  see  PLAN. 

Subsidiary  Buildings,  see  BUILDINGS. 

Suburban  Land,  classification  and  taxation  (Philadelphia),  42  note  21. 
See  also  LAND;  TAXATION. 

Suburban  Metropolitan  Planning  Act,  Pennsylvania,  594-597.  See  also 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS. 

Suburban  Streets,  residential,  setbacks,  178;  business  and  traffic,  setbacks, 
179-  See  also  SETBACKS;  STREETS  AND  HIGHWAYS. 

Subventions,  source  of  city's  revenue,  357-358;  defraying  cost  of  plans 
(France),  516,  530.  See  also  CITIES  AND  TOWNS;  GRANTS; 
PLAN. 

Subways,  see  TRANSPORTATION. 

Summary  of  Plan,  see  PLAN. 

Superfluous  Lands,  sale,  see  EXCESS  CONDEMNATION.  See  also 
LAND. 

Superior  Planning  Commission,  personnel,  duties  (France),  516-517. 
See  also  PLANNING  COMMISSIONS. 

Supervision  by  State,  see  STATES. 

Suppression,  nonconformity  in  structures,  202-204.  See  also  NON- 
CONFORMING  BULKS;  NONCONFORMING  STRUCTURES; 
NONCONFORMING  USES. 

Supreme  Court  of  United  States,  see  UNITED  STATES  SUPREME 
COURT. 

Surface  Lines  for  passengers,  liability  of  transportation  company  to 
abutting  landowners,  176.  See  also  LANDOWNERS;  TRANS- 
PORTATION. 

Survey,  practice  in  U.  S.,  condemnation  proceedings,  51-55;  preparation 
of  plan,  see  PLAN.  See  also  EMINENT  DOMAIN. 

Suspension  of  Operations,  nonconforming  structures  (Los  Angeles),  201. 
See  also  NONCONFORMING  BULKS;  NONCONFORMING 
STRUCTURES ;  NpNCONFORMING  USES. 

Sweden,  subdivision  of  building  land,  part  of  city  plan,  84;  legislation  for 
promotion  of  beauty.  396  note  24;  planning  law,  administration,  447, 
462-464;  planning  law  of  1907,  462-464;  report  by  Commissioners  to 
Interallied  Conference  on  planning  and  housing,  463  note  29.  See 
also  ADMINISTRATION;  BEAUTY,  PROMOTION  OF;  CON- 
STITUTIONAL AND  STATUTORY  PROVISIONS;  HOUS- 
ING; LAND;  PLAN;  PLANNING;  SUBDIVISIONS. 


730  INDEX 

Switzerland,  replotting,  83-127;  replotting  statutes,  87;  excess  condemna- 
tion to  promote  beauty,  382  note  3 ;  legislation  for  promotion  of 
beauty,  396  note  24;  building  regulation  to  promote  beauty,  400-402. 
See  also  BEAUTY,  PROMOTION  OF;  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  EMINENT  DOMAIN;  REPLOT- 
TING. 

Syrian  Quarters,  see  RACIAL  ZONING. 

Szegadin  (Hungary),  replotting  after  flood,  86.    See  also  REPLOTTING. 

Tables  of  Comparisons,  zoning  provisions  of  Frankfort,  Cologne,  Karls- 
ruhe and  Munich,  262-264,  See  also  CONSTITUTIONAL  AND 
STATUTORY  1'ROVISIONS;  ZONE  REGULATIONS. 

Tables  of  Statutes,  631-639. 

Taking,  eminent  domain,  definition,  15;  involved  in  regulation,  18;  with- 
out compensation  from  owners  under  early  grants,  45  note  2;  entire 
tract,  measure  of  damages,  47;  part  of  tract,  measure  of  damages, 
48.  See  also  EMINENT  DOMAIN;  GRAN 

Tall  Buildings,  unprofitable  and  undesirable  for  community,  195-197; 
control  by  zoning,  196;  in  Europe,  217  note  15.  See  also  HEIGHT 
LIMITATIONS  AND  DISTRICTS. 

TAXATION:  i.  In  General;  2.  Land;  3.  Income  from  Land;  4.  In- 
crement in  Land  Values;  5.  Single  Tax;  6.  Transportation  Com- 
panies; 7.  Outdoor  Advertising.  See  also  BENEFIT  ASSESS- 
MENTS. 

Cross-references:  ENGLAND  (u) ;  EXCESS  CONDEMNA- 
TION (i);  FRANCE  (4,  8);  GERMANY  (10);  LAND  (3,  5,  7, 
9,  n,  12);  LANDOWNERS  (2);  NEW  YORK  ( i,  3);  OUT- 
DOOR ADVERTISING  (6);  PLAN  (i);  PUBLIC  IMPROVE- 
MENTS (3)  ;  RECOMMENDATIONS  AND  SUGGESTED  RE- 
FORMS (12,  14,  16);  UNITED  STATES  (6). 

1.  In   General:  effect  on  land  development  of  taxing  capital    (as   in 
United   States)    or    income    (as   in    Europe),   366;    source   of   city's 
revenue,  357-358;  incidence  of,  effect  on  city  plan,  35* ;  limitation  of 
tax  rate,  methods  in  Europe  and  United  States,  358-359;  remission 
for  most  artistic  buildings  (France),  407. 

2.  Land:   residential   and  agricultural    (Canada),  41;   rural,   suburban 
and    urban    (Philadelphia),    42    note    21;    agricultural     (Hartford, 
Conn.),  42  note  21;  German  method  discussed,  366-367. 

3.  Income    from    Land:   municipal    taxation    (Germany),   358;   effect 
on  land  development,  366. 

4.  Increment  in  Land  Values:  to  pay  cost  of  public  improvements, 
139;   general    discussion,  373-375;    German   methods    criticised.   374; 
same   result  by  excess  condemnation,  374  note  23 ;   same   result   in 
Germany  by  purchase  at  private  sale,  374  note  23 ;  proposed   New 
York  law,  374  and  note  24. 

5.  Single   Tax:   income  value  of  land,  376;   "untaxing   of   buildings" 
expediency  in  dispute,  378-379. 

6.  Transportation  Companies:  extraordinary  taxes  not  advisable,  168. 

7.  Outdoor  Advertising:  in  street  cars  and  subways  and  other  public 
places,  suggestion,  409;  on  private  property,  411  and  note  63;  pro- 
gressive (I-'rann  i.  4^0;  statutes  tabulated,  636. 

Temporary  Commissions,  sec  PLAXNIXG  COMMISSIONS. 

Temporary  Structures,  sec  STRUCTURES. 

Tenement  Houses,  see  RESIDENTIAL  USES  AND  DISTRICTS. 

Term  of  Plan,  set-  I' LAN. 

Terminals,  see  TRANSPORTATION. 


INDEX  731 

Thayer,  Prof.  J.  B.  (Harvard  Law  School),  police  power  an  unclassified 
legislative  power,  18  note  4.  See  also  POLICE  POWER. 

Thomas,  A.  J.,  possibilities  of  area  regulation,  276  note  23.  See  also 
AREA  LIMITATIONS  AND  DISTRICTS. 

Threats  of  Competition,  control  of  public  utilities,  162-163.  See  also 
CITIES  AND  TOWNS;  PUBLIC  UTILITIES. 

Three  Decker,  exclusion  by  imposing  onerous  regulations,  192.  See  also 
RESIDENTIAL  USES  AND  DISTRICTS. 

Three  Family  Houses,  Diisseldorf  ordinance,  259.  See  also  RESI- 
DENTIAL USES  AND  DISTRICTS. 

Tide  Lands,  riparian  owner's  preferred  right  to  purchase,  171  note  n. 
See  also  HARBORS  AND  WATER  FRONT;  LANDOWNERS; 
RIPARIAN  OWNERS. 

Time  in  Force,  plan,  see  PLAN. 

Title  to  Water  Front,  navigable  streams,  170.  See  also  HARBORS 
AND  WATER  FRONT;  RIPARIAN  OWNERS. 

Torrens  Act,  1868  (England),  condemned  buildings,  owner's  duty  to  re- 
pair or  tear  down,  81.  See  also  CONSTITUTIONAL  AND 
STATUTORY  PROVISIONS;  ZONE  REGULATIONS. 

Toronto  (Canada),  residential  and  industrial  districts,  265.  See  also 
RESIDENTIAL  USES  AND  DISTRICTS;  INDUSTRIAL  USES 
AND  DISTRICTS. 

Towers,  business  and  industrial  districts,  206  note  14  (15)  ;  regulations 
(New  York  City),  270.  See  also  BUSINESS  USES  AND  DIS- 
TRICTS; INDUSTRIAL  USES  AND  DISTRICTS;  ZONE 
REGULATIONS. 

Town  Planning,  see  PLANNING. 

Towns,  see  CITIES  AND  TOWNS. 

Tracks,  see  TRANSPORTATION. 

Trade,  segregation  (Cal.  and  Oregon),  566  note  43. 

Traffic  Regulations,  police  power,  183-184.  See  also  POLICE  POWER; 
STREETS  AND  HIGHWAYS. 

Traffic  Streets,  see  STREETS  AND  HIGHWAYS. 

Tramways,  see  TRANSPORTATIpN. 

Transfer  Yards,  proposed  port  zoning  in  New  York,  278  note  28.  See 
HARBORS  AND  WATER  FRONT;  TRANSPORTATION. 

Transfers,  Free,  see  TRANSPORTATION. 

Transit  Lines,  see  TRANSPORTATION. 

TRANSPORTATION:  i.  In  General;  2.  Public  Control;  3.  Con- 
tracts with  City;  4.  Construction;  5.  Terminals  and  Stations; 
6.  Tracks;  7.  Subways;  8.  Rates  of  Fare;  9.  Free  Transfers. 
Cross-references:  BENEFIT  ASSESSMENTS  (3);  CITIES 
AND  TOWNS  (2)  ;  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS  (5);  LANDOWNERS  (i)  ;  NEW  YORK  (i); 
NEW  YORK  CITY  (3,  n,  13);  OUTDOOR  ADVERTISING 
(O;  PLAN  (7);  RECOMMENDATIONS  AND  SUGGESTED 
REFORMS  (16,  17,  18)  ;  RESIDENTIAL  USES  AND  DIS- 
TRICTS (3);  TAXATION  (6,  9);  UNITED  STATES  GOV- 
ERNMENT (i). 

1.  In  General:  planning  power  of  United  States,  9;  part  of  city  plan, 
27;   importance  in  city  plan,   161 ;  relation  to  growth  of  city,   162; 
part  of  possible  state  regional  plan,  544;   definition  of  "transporta- 
tion facility"  in  Port  Authority  Act  for  New  York  Harbor,  601. 

2.  Public  Control:  of  locations  and  rates  as  related  to  state  planning, 
8;  of  routes  and  location,  164;  rates  and  facilities,  164-166;  of  adver- 
tisements   in    stations    and   cars,   408-409;    regulation    of    tramways 


733  INDEX 

(Canada),  512;  power  of  United  States  to  regulate,  build  or  operate 
interstate  railroads,  536,  540;  grant  of  powers  to  planning  com- 
mission, 561-2.  See  also  infra  this  title,  RATES  OF  FARE;  SUB- 
WAYS. 

3.  Contracts  with  City:  service  at  cost  agreements,  166  and  note  6; 
reason  against  long  term  contracts,  166  and  note  7. 

4.  Construction:    of    municipal    railroad,    excess    condemnation,    61 ; 
liability  to  abutter  for  use  of  streets,  176;  cost  met  by  benefit  assess- 
ments, 3/2  and  notes  20  and  22. 

5.  Terminals  and  Stations:  part  of  city  plan,  27;  grain  and  other  bulk 
cargo,  proposed  port  zoning  in   New  York,  278  note  28;  grant  of 
jurisdiction  to  planning  commission,  561-2;   definition  of   "terminal 
facility"  in  Port  Authority  Act  for  New  York  Harbor,  601. 

6.  Tracks:  permits  to  lay,  proper  conditions  of  grant,  168;  joint  use, 
168;   consideration  of  extensions  in   determining  reasonableness  of 
return  on  capital  invested,  168. 

7.  Subways:   relation  to  city  growth,   162;  in   New  York  City,   fran- 
chises discussed,  169;  construction,  liability  to  landowner  for  dam- 
ages, 176;   station  and  car  advertisements,  public  control,  408-409; 
construction    under     New     York     City    post    office,     federal    con- 
trol, 536. 

8.  Rates  of  Fare:  regulation  as  method  of  control,  162;  effect  on  dis- 
tribution of  population,  162;  control  by  city,  164-166;  suggestions,  165. 

9.  Free  Transfers:  between  lines  of  competing  companies,  advisability, 
1 68. 

Tree  Planting,  legality,  382-383  and  note  6;  East  Birmingham  (England) 
scheme,  507  note  20.  See  also  BEAUTY,  PROMOTION  OF. 

Tribunal  in  Condemnation  Proceedings,  survey  of  practice  in  U.  S., 
52-54.  See  also  EMINENT  DOMAIN. 

Trucking,  closing  of  streets,  traffic  regulations,  183.  See  also  POLICE 
POWER;  STREETS  AND  HIGHWAYS. 

Tunnels,  jurisdiction  of  planning  commission,  561-2.  See  also  ADMIN- 
ISTRATION; PLANNING  COMMISSIONS;  TRANSPORTA- 
TION. 

Two  Family  Houses,  see  RESIDENTIAL  USES  AND  DISTRICTS. 

Uncertainty  of  Law,  involving  social  reform,  a  result  of  limitation  of  right 
of  appeal  to  U.  S.  Supreme  Court,  24.  See  also  CONSTITU- 
TIONAL AND  STATUTORY  PROVISIONS. 

Unconstitutionality,  racial  zoning,  200.  See  also  CONSTITUTIONAL 
AND  STATUTORY  PROVISIONS;  RACIAL  ZONING. 

"Undertaker"  of  Street  Improvements,  definition  (Germany),  365.  See 
also  STREETS  AND  HIGHWAYS. 

Undertaking  Districts,  Los  Angeles,  267  note  9.    See  also  DISTRICTS. 

Undeveloped  Areas,  see  LAND. 

Unhealthy  Areas  Act,  1895,  first  English  zone  condemnation  law,  82,  88. 
See  also  CONSTITUTIONAL  AND  STATUTORY  PROVI- 
SIONS; ZONE  CONDEMNATION. 

Uniformity  in  Zoning  Practice,  importance,  272  note  17.  See  also  ZONE 
REGULATIONS;  ZONING. 

Union  of  Planning  Park  Boards,  criticism,  562.  See  also  ADMINI- 
STRATION; PLANNING  COMMISSIONS. 

Unit  Planning,  section  of  city   (England),  499.     See  also  PLANNING. 

UNITED  STATES:  i.  In  General;  a.  Beauty,  Promotion  of; 
3.  Eminent  Domain;  4.  Excess  Condemnation;  5.  Replotting; 
6.  Taxation. 


INDEX  733 

Cross-references:  ADMINISTRATION  (2,  3,  4);  BENEFIT 
ASSESSMENTS  (i,  5);  BULK  ZONING  (4);  CITIES  AND 
TOWNS  (5,  6)  ;  CONSTITUTIONAL  AND  STATUTORY  PRO- 
VISIONS (i);  EXCESS  CONDEMNATION  (2);  LAND  (7, 
9);  OUTDOOR  ADVERTISING  (3);  PLAN  (i);  PLANNING 
COMMISSIONS  (i);  REPLOTTING  (i);  SETBACKS  (i,  2): 
STREETS  AND  HIGHWAYS  (n);  TAXATION  (i);  TRANS- 
PORTATION (i,  7);  ZONE  CONDEMNATION  (i);  ZON- 
ING (4). 

1.  In  General:  laissez  faire  method  of  city  development,  40;  zoning, 
211,    265-292;    planning   administration,    see    ADMINISTRATION; 
planning   jurisdiction,    see   ADMINISTRATION. 

2.  Beauty,  Promotion  of:  planting  of  shade  trees,  legality,  383  note  6; 
use  of  police  power,  392 ;  artistic  designing  of  buildings,  407 ;  regula- 
tion _ of  outdoor  advertising,  importance  and  likelihood,  422. 

3.  Eminent  Domain:  taking  land  for  widening  streets,  66  note  9;  no 
instance  of  zone  condemnation,  139. 

4.  Excess  Condemnation:  cases  and  statutes,  67  note   10;  origin  in 
1812,  70;  discontinuance  in  1834,  70;  revival  in  1904,  128-129. 

5.  Replotting:  constitutionality  discussed,  142. 

6.  Taxation:  local  taxation  methods,  358;  benefit  assessments,  364,  366. 
United  States  Constitution,  see  CONSTITUTIONAL  AND  STATU- 
TORY PROVISIONS. 

United  States  Courts,  see  UNITED  STATES  GOVERNMENT. 

UNITED  STATES  GpVERNMENT:  i.  In  General;  2.  Powers  in 
General;  3.  Planning  Powers;  4.  Courts. 

Cross-references:  BEAUTY,  PROMOTION  OF  (12);  CITIES 
AND  TOWNS  (i)  ;  HARBORS  AND  WATER  FRONT  (i,  3,  6, 
7,  8);  HEIGHT  LIMITATIONS  AND  DISTRICTS  (i);  LAND 
(3)  ;  NEW  YORK  CITY  (11)  ;  PLANNING  (2,  7,  8,  9,  10,  12)  ; 
PUBLIC  IMPROVEMENTS  (i)  ;  RECOMMENDATIONS  AND 
SUGGESTED  REFORMS  (i,  2)  ;  STATES  (i)  ;  TRANSPORTA- 
TION (2). 

1.  In  General:  protection  of  private  property  rights,  14;  constitutional 
limitations,  application  to  island  dependencies,  536  note  2. 

2.  Powers  in  General:  control  of  subway  construction  under  post  office 
in  New  York  City,  536;  regulation  of  pilotage,  538;  regulation  of 
pier  and  bulkhead  lines,  539,  540;  over  harbors  and  docks,  unexer- 
cised,  540;  over  interstate  transportation  as  related  to  city  planning, 
540. 

3.  Planning  Powers:  scope  and  extent,  8-9,  536;  constitutional  limita- 
tions, 535 ;  incident  to  control  over  interstate  and  foreign  commerce, 
536-541 ;    regional    planning,    possibilities,    541 ;    giving    information 
and  advice,  function,  542  and  note  9. 

4.  Courts:    (In  General)  attitude  toward  state  laws,  22;  probable  at- 
titude  toward   excess   condemnation   statutes,   139;    (United   States 
Supreme  Court)    limited  right  of  appeal,  cause  of   uncertainty  of 
law   involving   social   reform,  24;    decisions   on  constitutionality   of 
irrigation    and    mining    statutes    discussed,    136-137;    decisions,    see 
UNITED    STATES   SUPREME  COURT    (decisions). 

United  States  Supreme  Court  (decisions),  police  power  as  affected  by 
usage  and  public  opinion,  19;  power  of  eminent  domain  as  affected 
by  local  conditions,  20,  21 ;  presumption  as  to  validity  of  state 
statutes,  22;  Boston  Back  Bay  cases  supporting  theory  of  zone  con- 
demnation, 140-142,  143;  irrigation  laws  valid  exercise  of  police 
power,  144-146;  police  power  extends  to  public  needs  deemed  such 


736  INDEX 

Waste,  prevention  by  use  zoning,  209.     See  also  USE  ZONING. 

Water  Courses,  fixing  of,  Saxon  law,  476. 

Water  Front,  see  HARBORS  AND  WATER  FRONT. 

Water  Pipes,  jurisdiction  of  planning  commission,  561-2.  See  also 
PLANNING  COMMISSIONS. 

Water  Power,  conservation  by  state,  regional  planning,  possibilities,  544. 
See  also  PLANNING;  STATES. 

Water  Supply,  system,  part  of  city  plan,  27;  Metropolitan  Water  Supply 
Commission  (Massachusetts),  547-$;  maps,  reference  to  planning 
commission  (New  York),  582.  See  also  MAPS;  PLAN;  PLAN- 
NING COMMISSIONS. 

Waterfall,  appropriation  for  artistic  purposes  (Colorado),  390  note  15. 
See  also  BEAUTY,  PROMOTION  OF. 

Waters,  Navigable,  see  HARBORS  AND  WATER  FRONT;  RIPA- 
RIAN OWNERS. 

Westchester  County  (N.  Y.),  zoning  law  under  police  power,  requiring 
notice  to  property  owners,  281  note  33;  Bronx  River  Parkway, 
elimination  of  menace  to  public  health,  383  note  7.  See 
EMINENT  DOMAIN;  PARKS  AND  PARKWAYS;  POLICE 
POWER. 

Wharves,  right  of  riparian  owner  to  build,  170.  See  also  HARBORS 
AND  WATER  FRONT;  RIPARIAN  OWNERS. 

White  Plains  (N.  Y.),  exclusion  of  heavy  industry,  278  and  note  27. 
See  also  RESIDENTIAL  USES  AND  DISTRICTS. 

Whitten,  Dr.  Robert  H.,  erection  of  buildings  within  lines  of  mapped 
streets,  30  note  5-  See  also  NONCONFORMING  STRUCTURES ; 
STREETS  AND  HIGHWAYS. 

Wholesale  Markets,  proposed  port  zoning  in  New  York,  278  note  28. 
See  also  HARBORS  AND  WATER  FRONT. 

Widening  Streets,  taking  land  (France,  Germany  and  United  States). 
66  note  9.  See  also  EMINENT  DOMAIN;  STREETS  AND 
HIGHWAYS. 

Wilcox,  Dr.  Delos  R,  Transit  Problems  of  New  York  City,  166  note  7. 
See  also  TRANSPORTATION. 

Willoughby,  Constitution  of  the  U.  S.,  legislative  powers  of  U.  S., 
538.  See  also  UNITED  STATES  GOVERNMENT. 

Windsor  (Conn.),  enforcement  of  city  plan  under  police  power,  36-38  note 

17.  See  also  PLAN ;  POLICE  POWER. 

Wisconsin,  excess  condemnation,  129  note  10,  130  notes  13,  15,  131  notes 

18,  20;  constitutional   amendment  authorizing  excess  condemnation, 
131.  148.    See  also  EXCESS  CONDEMNATION. 

Withdrawal  from  Port  Authority  Compact,  right  reserved.  Port  Author- 
ity Act  for  New  York  Harbor,  601.  See  also  HARBORS  AND 
WATER  FRONT. 

Wood,  Sir  Kingsley,  condemnation  of  land  for  housing,  compensation, 
75  note  35.  See  also  EMINENT  DOMAIN. 

Works  of  Art,  see  BEAUTY,  PROMOTION  OF. 

Working  Classes,  municipal  houses  (England),  81.  See  also  CITIES 
AXD  TOWNS;  HOUSING. 

Worcester  (Mass.),  statute  allowing  excess  condemnation,  153.  See  also 
EXCESS  CONDEMNATION. 

Wiirttemberg,  excess  condemnation,  statutes,  67  note  10;  "classification," 
works  of  artistic  and  historic  value,  398  note  27 ;  duty  of  authorities 
to  construct  planned  streets,  461 ;  extension  «f  building  areas  as 
needed.  461;  city  planning  and  building  line  statute,  promotion  of 
beauty.  402.  See  also  BEAUTY,  PROMOTION  OF;  CONSTITU- 


INDEX  737 

TIONAL  AND  STATUTORY  PROVISIONS;  EXCESS  CON- 
DEMNATION; LAND;  STREETS  AND  HIGHWAYS. 

Yards,  area  limitations,  see  AREA  LIMITATIONS  AND  DISTRICTS; 
classification  and  transfer,  proposed  port  zoning  in  New  York,  278 
note  28.  See  also  HARBORS  AND  WATER  FRONT. 

ZONE  CONDEMNATION:     i.  In  General;  2.  Slum  Removal. 

Cross-references:  ENGLAND  (9);  EXCESS  CONDEMNATION 
(i);  FRANCE  (7);  RECOMMENDATIONS  AND  SUG- 
GESTED REFORMS  (5);  REPLOTTING  (i) ;  UNITED 
STATES  (3). 

1.  In   General:   definition,  61,   139,    140;   replotting  distinguished,  63; 
history,  65;   Canada,  Australia  and  India,  73  and  note  24;   France 
since  1850,  75-79,  514  note  34;  Belgium,  79;  Italy,  80;  no  instance  in 
United  States,  139;  support  found  in  drainage  scheme  cases  (Boston 
Back    Bay    Cases),    140;    excess    condemnation    distinguished,    140; 
Prussia,  451. 

2.  Slum  Removal:  zone  condemnation  especially  useful,  61 ;  history  of 
law  and  practice  in  England,  74,  75,  80-83,  498;  assessing  compensa- 
tion to  owners  (England),  74,  75;  housing  reforms   (England),  80- 
81 ;  Unhealthy  Areas  Act  or  Cross  Act  (first  English  zone  condem- 
nation law),  82;  criticism  of  English  methods,  82,  83;  necessity  of 
co-ordination  with  city  planning,  83. 

Zone  Rate,  transportation  companies,  effect,  165  and  note  5.  See  also 
TRANSPORTATION. 

ZONE  REGULATIONS:  i.  In  General;  2.  Legality;  3.  Amend- 
ment; 4.  Particular  Regulations. 

Cross-references:  ADMINISTRATION  (5,  6);  BEAUTY,  PRO- 
MOTION OF  (5)  ;  BOARDS  OF  APPEALS  (3)  ;  BUSINESS 
USES  AND  DISTRICTS  (i)  ;  CITIES  AND  TOWNS  (i); 
CONSTITUTIONAL  AND  STATUTORY  PROVISIONS  (9); 
GERMANY  (5,  6)  ;  INDUSTRIAL  USES  AND  DISTRICTS  (3, 
4);  LAND  (8,  9,  11)  ;  MASSACHUSETTS  (i)  ;  NEW  YORK 
CITY  (2,  3,  4,  9)  ;  RECOMMENDATIONS  AND  SUGGESTED 
REFORMS  (7,  15)  ;  RESIDENTIAL  USES  AND  DISTRICTS  (i, 
3,  5,  6,  7,  9);  USE  LIMITATIONS  AND  DISTRICTS  (2, 

4). 

1.  In  General:  as  a  means  of  enforcing  city  plan,  29;  control  of  tall 
building  peril,    196;  power  to   make,  grant  from   state  to  city,  205 
note   14    (5)  ;   effect  on  land  values,  207-209;   development  in   Ger- 
many from  large  to  smaller  districts,  216;   discretionary  power  of 
officials  in  administering,  criticism,  279. 

2.  Legality:  constitutionality,  discussion,  281-292;  reasonableness,  282; 
equal  protection  of  law,  282-283 ;  constitutionality  of  New  York  City 
regulations  upheld,  290;  presumption  of  reasonableness  from  right 
to  appeal,  572  note  52. 

3.  Amendment:   statement  of  principles,  205  note   14    (9,   10)  ;  under 
New  York  zoning  law  for  cities,  297-298;   under   New  York  City 
zoning  resolution,  322;  under  Milwaukee  ordinance,  339. 

4.  Particular  Regulations:    Germany,   39;    Frankfort,   247-250    (sees. 
8-14),  262  (No.  i);  Dusseldorf,  256;  Cologne,  262  (No.  2);  Karls- 
ruhe, 263   (No.  3);  Munich,  264  (No.  4);  Los  Angeles,  267;  New 
York   City,   268-276,   305-323;    Prussia,  452,   473;    Saxony,  457-459! 
England,  503-504;  Canada,  512. 

Zones,  Urban,  see  URBAN  ZONES. 


738  INDEX 

ZONING:  i.  In  General;  a.  Legality;  3.  Principles;  4.  Practice. 
Cross-references:  CONSTITUTIONAL  AND  STATUTORY 
PROVISIONS  (3,  4,  5,  7);  EMINENT  DOMAIN  (i)  ;  ENG- 
LAND (i);  GERMANY  (5);  MASSACHUSETTS  (i);  NEW 
YORK  CITY  (i,  9,  10) ;  ORDINANCES  (i);  PLAN  (5); 
POLICE  POWER  (2);  RECOMMENDATIONS  AND  SUG- 
GESTED REFORMS  (i,  2,  20);  STREETS  AND  HIGHWAYS 
(3);  UNITED  STATES  (i). 

i.  In  General:  general  statement,  5;  definition,  197,  204  note  14;  part 
of  city  plan,  205  note  14  (6)  ;  purpose  and  application,  205  note  14 
(7)  ;  importance,  272. 

a.  Legality:  under  police  power,  204  note  14  (3,  4)  ;  under  police 
power  and  under  eminent  domain  contrasted,  280-281 ;  judicial  de- 
cisions, 284  note  34,  288-200;  amendment  to  Massachusetts  constitu- 
tion, 289,  293;  unsettled  legal  questions,  291-292;  statutes  tabulated, 

634-5- 

3.  Principles:  nonconformity  of  existing  structures,  200-204;   survey 
first  step,  details  covered,  202;  built  up  districts,  prevailing  character 
of  neighborhood,  202;   statement  of  principles   (Bassett),  204  note 
14 ;  at  time  of  street  layout,  205  note  14  (6)  ;  general,  recognition  of. 
importance,  272  note  17;  necessity  of  specific  authorization  to  local 
government,  281. 

4.  Practice:  origin  and  development  in  Europe,  210  and  note   i;  ac- 
cording to  types  of  houses   (Germany),  217  note   14;  England,  218 
and  note  16;  Frankfort,  237-238  (sec.  2);  Diisseldorf,  255;  Canada. 
265;   Toronto.  265;   United   States,   265-292;    Boston,  266  and  note 
6;  New  York  City,  271-272;  importance  of  uniformity,  272  note  17; 
suggestions  for  port  zoning  in  New  York  City,  278  note  28;  Pacific 
coast,  elaborate  classification,  unwise  to  follow,  291. 

Zoning  Administration,  statutes  generally  permissive,  566  and  note  43. 

See     also     ADMINISTRATION;      CONSTITUTIONAL     AND 

STATUTORY  PROVISIONS. 
Zoning  Committee  of  New  York  City,  functions,  569  note  51.    See  also 

PLAN. 
Zoning  Law  distinguished  from  housing  law,  factory  law  or  building  law, 

205  note   14   (12);   New  York  City,  293-295;  cities  in   New   York, 

295-298;  cities  in  New  Jersey,  298-301;  District  of  Columbia.  301- 

304;  regulation  of  use  of  vacant  land,  566  note  43.    See  also  CITIES 

AND  TOWNS;  HOUSING;  LANDS. 
Zurich,  submission  of  plan  of  minor  streets,  84;  first  replotting  law,  86. 

See  also  REPLOTTING;  STREETS  AND  HIGHWAYS. 


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